California voters seem to have enacted Prop. 8, a constitutional amendment that states, "Only marriage between a man and a woman is valid or recognized in California." What happens to all the same-sex marriages that have already taken place? (Let's assume for now that the amendment is upheld as constitutional, at least as to future marriages — something that I think is quite likely.) Here's an updated version of my thinking on the subject from earlier this year. (I should note that I voted against Prop. 8.)

1. One option is that they may remain valid, whether because the initiative is construed as not applying to existing marriages, or because the courts conclude such an interpretation is constitutionally mandated by the Contracts Clause ("No state shall ... pass any ... Law impairing the Obligation of Contracts ....").

I highly doubt that this will happen. According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized. (Nor is there any language in the initiative summary, or the supporters' arguments, that purports to interpret this text as not applying to existing marriages.) Future marriages, preexisting marriages, in-state marriages, out-of-state marriages — all are valid and recognized only so long as they are between a man and a woman. And the Contracts Clause likely won't affect it, since it's been held not to apply to marriage contracts (see Maynard v. Hill, 125 U.S. 190 (1888); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934)), which is why statutes authorizing divorces have been allowed even as to marriages that had been entered into when divorces were not available.

Note that this article reports that "[a]n attorney for advocates of the ban essentially agreed" that "the proposed amendment, like most laws, will be interpreted to prevent same-sex marriages in the future, and not affect those that were legal when they took place." And some court decisions have hinted that a court might also look to "various pre-election materials (newspaper articles and editorials, committee reports, interest-group articles, etc.)." AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 436 n.4 (1989); see also Carlos v. Superior Court, 35 Cal. 3d 131, 144 n.12 (1983), overruled on other grounds by People v. Anderson, 43 Cal. 3d 1104 (1987); Goodman v. County of Riverside, 140 Cal. App. 3d 900, 906 & nn.3-5. But it seems to m that these sources can only be the most tenuous evidence of what the voters actually understood the amendment as meaning, or intended it to do. As People v. Castro, 38 Cal. 3d 301, 312 (1985), held, "opinions [which were not] distributed to the electorate by way of the voter's pamphlet" ought not be relied upon, because courts "can only speculate [about] the extent to which the voters were cognizant of them." Accord People ex rel. Lungren v. Superior Court, 48 Cal. App. 4th 1452, 1461 n.6 (1995), rev'd on other grounds, 14 Cal. 4th 294 (1996).

2. Another is that pre-initiative same-sex marriages will become domestic partnerships, which under California statutes give most of the rights of marriage. The proposed initiative doesn't purport to bar such domestic partnerships, and it would make sense to treat such invalidated marriages as domestic partnerships, since this is the result that seems most likely to effectuate as much of the married couples' intentions as possible. In a sense, this would be similar to what courts do when they invalidate legislation on constitutional grounds, including in the same-sex marriage case itself: Since the legislation can't be literally applied, they tend to try to find the solution that the legislature would likely have preferred had it anticipated the court decision.

In the same-sex marriage case, for instance, the court had to implement its equality decision by choosing between treating same-sex marriages as "marriages," and concluding that under state law no marriages could be labeled "marriages." (Recall that even the right-to-marry part of the court's decision left open the possibility that a legislature could simply not use the label "marriage" for any relationship.) The court chose to treat same-sex marriages as marriages, reasoning that "it is readily apparent that extending the designation of marriage to same-sex couples clearly is more consistent with the probable legislative intent than withholding that designation from both opposite-sex couples and same-sex couples in favor of some other, uniform designation." The actual legislative intent of the legislators plus the voters couldn't be perfectly implemented because of the court's constitutional ruling, but the court tried to implement it as closely as possible. One could argue that courts should do the same as to private same-sex marriage decisions invalidated by a state constitutional amendment.

On the other hand, I suppose there might be some same-sex married couples who might take a "marriage or nothing" view, so as to them changing the marriage to a domestic partnership might not reach the result they prefer; maybe there would even be so many that the judgment about what is "more consistent with the probable [individual] intent" becomes unclear. More importantly, there are specific statutory provisions dictating what it takes to create a domestic partnership. A court might well conclude that, unless these formalities are complied with, the domestic partnership can't be said to exist, even if a different set of formalities required for a marriage — a now-invalidated marriage — have been complied with.

Given this, I'm not sure how likely a court would be to take this approach; I'd love to hear those who know more about California judicial practices in similar scenarios might be (though note that no scenario has been quite like this one). Note also that the backers of the initiative might well make statements in the ballot pamphlet endorsing this solution — since such statements might give the initiative more support without deeply offending its advocates — and those statements might influence the judges deciding how to implement the initiative once it's enacted.

3. A third option is that same-sex marriages will be eliminated altogether, and that married couples will remain domestic partners only if they had entered both into a marriage and into a domestic partnership (on a belt-and-suspenders theory) — though I've never heard of that happening, and it's not clear to me whether existing California marriage and domestic partnership law would allow this. My sense is that it should be interpreted to allow this (since this is hardly the same as marrying one person but then becoming domestic partner with another, which is not allowed), but I'm not positive.

4. Finally, it's possible that the legislature will step in, specifically providing that any invalidated same-sex marriage will become a domestic partnership. I think that would be good, because it would minimize disruption and best effectuate people's preferences, and I see no reason why it would be unconstitutional. (Someone suggested that it might violate the Ex Post Facto Clause, but that has been interpreted as applying only to criminal laws.)

Does anyone think that there is any possibility that the California Supreme Court will refuse to give effect to this measure? You will recall that some Massachusetts high court judges made noises about finding an anti-gay marriage amendment to the Massachusetts constitution to be incompatible with the rest of the document, and excising it on that basis. In the end, the issue never arose in Massachusetts.

Let's assume for now that the amendment is upheld as constitutional, at least as to future marriages -- something that I think is quite likely.

Really? How does the logic in Loving not apply to gay marriage?

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.

I don't see how they can reasonably uphold Proposition 8 without overturning Loving, given that it's apparently one of the "basic civil rights of man".

The amendment could be reconciled with the pre-existing constitution by eliminating all marriages, gay and straight. There is a non-trivial chance of this. Many Californians believe that marriage should be a religious institution, separate from state-sanctioned civil unions.

So funnily enough, Proposition 8 may have the effect of destroying marriage in California.

Does anyone think that there is any possibility that the California Supreme Court will refuse to give effect to this measure?

This morning I heard media suggestions of litigating seeking such a result on the grounds that the constitutional amendment created by Prop 8 is "inconsistent" with other provisions of the California Constitution,, but I think it is extremely unlikely any higher court would countenance it. (There's no telling what a trial court judge will do, of course.) The whole point of amendments is that they can be inconsistent with what came before; the argument doesn't make any sense.

I think a more probable, and somewhat more credible, approach would be an attack under Romer v. Evans, based on an assertion that the amendment sought to single out a group for a proposition-imposed disability. Romer v. Evans is too complicated for me to discuss here, and I'm too dumb to do it; perhaps a Conspirator will address it. The problems are that (1) I doubt SCOTUS, as currently composed, would reaffirm Romer, (2) there are differences between the proposition in Romer (which forbade the legislature from passing anti-discrimination measures related to sexual preference) and Prop 8 (which is far more narrow in a number of respects).

As disappointed as I am in the Prop 8 result, I think we need to wait for generational replacement on this one, not the courts.

Let's assume for now that the amendment is upheld as constitutional, at least as to future marriages -- something that I think is quite likely.

Never underestimate the willingness of the Unelected Judges to overthrow the will of the people in their quest to remake society. I have no doubt that the Amendment will be overturned. Judges hate it when Americans spit in their eye.

Any person who is currently in a same-sex marriage has standing, I'd think.

The question is mostly a California Con Law question, as it's an amendment to the CA Constitution. That would override any previous CA Const language regarding discrimination and/or application of ex post facto law.

Calder v Bull would seem to rule out applying the federal ex post facto prohibition, and there's no federal law prohibiting discrimination based on sexual orientation.

"To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes"

At the time, it was clear that classifications involving race had no basis other than to impair the rights of the black race, which was directly contradictory to several constitutional amendments. Loving v Virginia did not strike down any other limitations on marriage, of which there were many. Classifications based on sex are not so obviously intended to deprive rights to any group of people, and so the parallel to Loving is poor.

I'm sure some gay couples were foolish enough to buy a house together in the last few months. California is a community property state. If the house can no longer be considered "marital property" after Prop 8, who owns title to the house and on what basis?

Of course they would. Most of the justices who voted on Romer are still on the Court.

But what I doubt is that they would apply it to a gay marriage ban. The difference is that Amendment 2 in the Romer case not only stopped the state from barring discrimination, but stopped localities as well. Presumably, localities are free to recognize gay couples as married for purposes of local benefits and programs under Proposition 8; indeed, given state statutory law on domestic partnerships, they probably have to.

Will the various Federal marriage tax penalties ever apply to same-sex couples?

Will California domestic partnerships ever be made available to opposite sex couples with both less than 62 years of age, so they can get the insurance etc benefits of domestic partnership without having to pay the Federal marriage tax penalty?

As it is, same sex couples get a better deal than opposite sex couples.

Pointing to Loving will not persuade anyone who is not already persuaded; throughout history, societies recognized marriages between a man and woman of different races or nationalities. The banning of such unions was a short-lived phenomena in a handfull of places, and still recognized that such a union was a marriage -- simply one that the law prohibited. By contrast, I am aware of no society in recorded historyd that defined "marriage" as anything except a union of a man and a woman -- including societies that attached no stigma to homosexual relationships, and even those such as ancient Greece that considered those relationships to be of a higher order than marriage.

This is also why calmom's observation about deprivation of civil rights does not withstand scrutiny. Everyone wants to feel accepted by society. Some will not feel accepted until society accords their same sex unions the same status as marriage. Still others feel that it is only fair to do so. This desire for acceptance is not the same as deprivation of a civil right, especially a "right" that never existed. Using false analogies to civil rights, In courts in California and elsewhere have accommodated these feelings by redefining the word "marriage" to mean something that it never meant before. Other people find this differently smart.

The consitutional congress would not be shocked at the idea that freedom of speech applies to television and radio, or that the right to be secure in one's home and papers includes the right not to have one's domestic phone calls subjected to electronic evesdropping. Yet for more than 200 years, no one seemed to think that the bill of rights includes the right to insist that everyone use the word marriage to include a domestic arrangement between two people of the same sex.

As the exit polls showed, Latinos voted for Proposition 8. Whites voted against it. Latinos, as a group, are younger than whites. (Blacks also voted for Prop 8 but their numbers are smaller than Latinos). So the generational shift may have come among whites but is being 'delayed' due to the heavy influx of Latinos into California.

On the contrary, Prop 8 was designed specifically to deprive the rights to a group of people, aka, gays who wish to marry.

A right that did not exist until the court created it out of whole cloth (assuming that you mean marry someone of the same sex).

Yesterday they could, today they cannot.

Yesterday they could marry someone of the opposite sex. Today they still can, just like everyone else.

Yesterday they could solemnize a union with someone of the same sex and have the law penalize anyone who said "It may be right, it may be wrong, but it's not a marriage." Today they can still solemnize a union with someone of the same sex, enjoy some or all of the legal benefits of marriage, but can no longer use the law to force people to pretend that the union of two people of the same sex is in fact a marriage.

Re: the racial angle, Latinos did vote for prop. 8, but barely. The only racial group to vote heavily in favor was African-Americans. (This according to http://www.cnn.com/ELECTION/2008/results/polls/#CAI01p1)

I still suspect that a 14th amendment equal protection challenge to this law is possible. "to all persons" is not an ambiguous statement. Making groups violates equal protection (segregation decisions, anyone). The best direction would have been to stop the state from being involved in marriage, leaving marriage where it began in the churches and making state licenses solely civil unions.

Someday, the Prop 8 constitutional amendment will come down again. It will be a good day. I hope the wait is not too long.

And I hope dearly it's done through the political process and not the courts. But for all those people who were making noises about voting for Prop 8, not because you care about gay marriage but simply to give the finger to the California supreme court, well, I have no words for you. Stripping another human being of their rights simply because you object to how they finally got them is abhorrent.

Back in terms of legal issues, though, someone above raised a good point about house buying in a community property state. I'm actually really curious to know how that would be worked out -- anyone got an idea?

Why shouldn't gay/lesbian couples have every legal benefit of marriage? Maybe the best solution is just to get the state out of labelling marriages and let that be solely a church decision?

After all, that would mean that divorced Catholics couldn't get "married" again because their church wouldn't recognize it, but they could still enter into partnerships providing the same legal rights. That would seem to my mind to shore up the idea that religious views defining marriage as subject to some conditions (whether divorcees, same-sex couples, or whatever are excluded) would properly remain a religious matter.

Why shouldn't gay/lesbian couples have every legal benefit of marriage? Maybe the best solution is just to get the state out of labelling marriages and let that be solely a church decision?

Because of procreation. Marriage has a very important part - procreation. Equalizing homo and hetero couples you essentiallty abolish procreation.
Blacks and Latinos and Arabse recoginze that important part of marriage, and they are our future. There is no chance for gays to succeed in the long run.

A right that did not exist until the court created it out of whole cloth (assuming that you mean marry someone of the same sex).

But marriage as a basic human right was itself created out of whole cloth in Loving. That was my point - if it really is a "basic human right", there are lots of implications beyond miscegenation laws.

daytripper, the recognition of gay marriage in European countries is a recent phenomena. Yankev was clearly taking a historical view. His point is still valid - historically there has been no recognition of marriages between two individuals of the same sex. So asserting that there is a fundamental right to do so is claiming something new. This is not the case with interracial marriages so the parallel to Loving is weak.

Daytripper, thank you for catching my inaccuracy. What I should have said was

no society in recorded history that defined "marriage" as anything except a union of a man and a woman, other than a handful that have done so very recently, and -- perhaps coincidentally, perhaps not -- long after their societies declined from previous accomplishments

I have to agree with the conservatives on this one. Gay marriage is the correct policy for a legislature to make, end of story.

I have no doubt that I would certainly vote against prop 8 (if I were a CAn) but I would vote for an amendment along the lines of

Only the legislature is empowered to define the eligibility for marriage.

Now, unfortunately, there were no principled conservatives that put forth such an amendment, instead chosing to codify their prejudices into the constitution. I am disppointed that they succeeded, but ultimately, it will be a short lived victory.

How does this affect federal taxes? I would think that being able to file a 1040 as "married filing jointly" is a big deal for same sex couples - can they still do that if they are just California domestic partners?

Is there any way for legally married couples to go to another state, have those marriages recognized under full faith and credit, and then come back to CA as married in another state? Or is there some exception to FF&C when one state's law conflicts with some 'fundamental public policy' of the forum state? (I really can't remember).

My lady asked me to justify the concept of marriage itself the other day and I really couldn't come up with anything other than protecting a homemaker's investment in the partnership and protecting children's futures. She countered that all those things could be done by contract. I suppose that leads to the conclusion that marriage just saves couples the contracting costs of negotiating rules they'd want anyway.

There is the Religious aspect of marriage but I do not see how state sanction of the "institution" makes it any more morally or divinely valid.

So my hope is that, in line with a couple of the above posters, marriage is de-secularized and that it becomes a subset of domestic partnership and not the other way around.

"If the house can no longer be considered "marital property" after Prop 8, who owns title to the house and on what basis?"

Look to who is listed on the title as the owner(s). If both are listed on the title, then one can sign a quit claim. Or the couple could continue own the property jointly. Lots of people own property jointly. What's the problem?

Butter is not fundamental to the survival of society, nor is butter necessary for the propagation of focaccia. Without children, there is no more society -- no more people of any orientation.

One's choice of butter or focaccia is largely cultural, and neither confers any greater benefit on society than the other.

Or are you saying that sex between people of the same sex is merely an amusement, diversion or change of pace, and qualitatively different than "bread and butter" (to use your terms) sex? In which case what does butter have to do with anything? (Or as a friend of mine says what does kasha have to do with gribbonets?)

Or are you simply saying that children make one gain weight and harden one's arteries?

Basically, every challenge to the Supreme Court over DOMA has failed over legal technicalities. The big issue thus far is that one must show legal standing, which really means one must probably be challenging the law as a married gay couple in a state hiding behind DOMA, refusing to recognize the marriage. At that point, due process, full faith and credit, etc, would be relevant in a way that they would not be otherwise (if you aren't married, the full faith and credit clause really doesn't apply anyway, and the due process clause might not as well).

Probably. Which is why some seek an amendment to the US Constitution along the lines of DOMA. And which is why the ABA's objection to such an amendment -- that the DOMA makes the amendment unnecessary -- is so dishonest, as compared to opposing the amendment on the grounds of legislative policy.

Butter is not fundamental to the survival of society, nor is butter necessary for the propagation of focaccia. Without children, there is no more society -- no more people of any orientation.

One's choice of butter or focaccia is largely cultural, and neither confers any greater benefit on society than the other.

Or are you saying that sex between people of the same sex is merely an amusement, diversion or change of pace, and qualitatively different than "bread and butter" (to use your terms) sex? In which case what does butter have to do with anything? (Or as a friend of mine says what does kasha have to do with gribbonets?)

Or are you simply saying that children make one gain weight and harden one's arteries?

Are you claiming that gay marriage will destroy procreation? Or even that not allowing gay people to marry will make them more likely to decide to procreate with people of another gender? It's not like they'll just settle for "second best marriage" to a person of the opposite sex. Your argument would better apply to the existence of gay people, not the existence of gay marriage. Though, I doubt that you'd be inclined to come out and say that gay people will destroy humanity if they're allowed to exist. Surely you'd realize the failure of that argument: gay people HAVE existed, since before history remembers. The human race has survived.

Yankev:
Same-sex couples have children all the time. Often, one partner's eggs will be implanted in the other's uterus. Male couples use surrogates. In at least nine states, birth certificates name both (same-sex) parents.

The marriage issue was not conjured out of thin air, nor is it an abstract exercise of fringe leftists pushing the definition of "civil rights" to the limits. Gay activists of not-so-long ago shunned the idea of marriage as bourgeois. Now there is a large gay bourgeoisie, with real families, real day-to-day problems and no adequate legal framework within which to resolve those problems.

I don't think it's silly and it applies because the original commenter's used logic to state that because something wasn't recognized previously, than it should continue not to be recognized. Using that logic, I submitted an analogy that used the race of BHO and how historically we have never recognized a Black Prez. Now we recognize a Black Prez-elect.

If the commenter's main argument was a temporal argument, as in the duration of time that humanity has not recognized homo marriage, then my analogy doesn't work.

Which is why some seek an amendment to the US Constitution along the lines of DOMA.

Personally, I think the moment we start writing discrimination into our Constitution, we will begin a trend which will only end in bad things for our country. I agree that the ABA's objection is dishonest, but we have to ask why it is necessary for the Constitution to include protections of our society against any minority group.....

What long term effects do you posit will occur? If you rely merely on the idea that "anything could happen as it's unprecedented", would you criticize the founding fathers for taking the unprecedented action of forging the largest and longest lasting republic? The possible negative effects in that situation were far more real and far more pressing than the illusions of negative effects that people throw up around gay marriage. Seriously, I can think of no issues before the public today which have such a high chance of improving society (children of gay couples being raised in a stable environment with married caretakers) and such a low chance of harming it (maybe some straight people would see gay couples and realize that they, too, have been gay all along, lowering the population of child-making straight people?). There aren't losers, here.

If the house can no longer be considered "marital property" after Prop 8, who owns title to the house and on what basis?

As someone who bought communal property in California with my spouse BEFORE the courts allowed marriage, I can tell you that the Domestic Partnership law allows gay couples to purchase property as community property (that's how ours is registered).

So the standing as "married" or not would not affect communal property as long as the couple is considered in a domestic partnership.

But marriage as a basic human right was itself created out of whole cloth in Loving. That was my point - if it really is a "basic human right", there are lots of implications beyond miscegenation laws.

That's why I regard that part of Loving as wrong, particularly when it was unnecessary to reach the result.

Seriously, read the Constitution. Dummy version: Congress explicitly is granted the power to determine what full faith and credit means.

You mean this?

And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

I don't see that at all meaning Congress can define full faith and credit. I see it as saying that Congress's role is specifically to address the manner in which full faith and credit is applied and provide for general direction in this matter. If this were unlimited, then we might see something in Article 1 about this as being a primary power of Congress (in the same way interstate commerce is mentioned).

For example, I don't think Congress could allow states not to recognize adoptions occurring in other states where the adopting couple was gay.

Every Californian who got a same-sex marriage license knew that Prop 8 was on its way to being on the ballot, and the couple could have gotten a domestic partnership if desired. Same-sex couples can also rush out and get domestic partnerships today. If they do not, then it seems reasonable to treat them as divorced.

Regardless of whether you think same-sex marriage is or should be a basic right, the CA Supreme Court ruled it was, so that's what we have to work with.

So the California Supreme Court may promiscuously mint all sorts of new rights not specifically mentioned in the state constitution and the only recourse that the people have is to revise the constitution? That seems to fly in the face of the previous revision of the constitution, which gave priority to direct popular will.

Smallholder, I think the argument is that straight people will decide that if gay people can get married, marriage isn't anything special. So they're not going to bother, and then will either not procreate or else have out of wedlock babies that will be shiftless parasites on society.

Gay activists of not-so-long ago shunned the idea of marriage as bourgeois. Now there is a large gay bourgeoisie, with real families, real day-to-day problems and no adequate legal framework within which to resolve those problems.

Thus the doom of the GOP. It has become an anti-bourgeois political movement.

What is the purpose of having a constitution that can be amended by 50% + 1? Why not just amend the constitution for every law, then?

I obviously am not happy with Prop 8 passing, but the fact it doesn't take some sort of supermajority to change the constitution makes me less bothered. Sure, having it be "constitutional" is very symbolic, but realistically, it doesn't seem like it'll be harder to overturn than any other law.

Of course, knowing way too little about the CA constitution, I could be completely missing something here.

So, if I understand the forces of tolerance correctly, sexual desire is an immutable traits like race, anyone who has qualms about redefining marriage or who believes that any such change should be decided by the legislature and not the courts, or who believes there is a moral component to homosexual behavior (as opposed to homosexual orientation) is a religious nutjob akin to a racial bigot, wants all people with homosexual desires to simply disappear, and would have opposed the founding of a republic.

Stripping another human being of their rights simply because you object to how they finally got them is abhorrent.

How narrow a principle is that? For instance, is it permissible to let a criminal go free (thus impinging on the rights of future victims of that criminal) if the criminal's confession was obtained by police abuse? That's not exactly the same since "unleash a criminal on society" is more indirect than "not let people marry", but it's certainly in the same ballpark.

Abuses of the law for good causes have to be objected to even if they're for good causes. It's the only thing that will discourage abuses of the law. (And remember that the next abuse may not be for something so innocuous. And it'll have precedent.)

Most of the justices who voted on Romer are still on the Court. But what I doubt is that they would apply it to a gay marriage ban.

I don't recall the word "ban" anywhere in the proposition.

Prop. 8 simply defines parameters, like defining eligible drivers to mean those sixteen years and older. By limiting marriage to one male/female couple, I can't marry my horse. So for me, it would be a man/mare marriage ban... if it were a 'ban.'

I think the argument is that straight people will decide that if gay people can get married, marriage isn't anything special. So they're not going to bother, and then will either not procreate or else have out of wedlock babies that will be shiftless parasites on society.

Interestingly enough, the idea of same sex marriage was not accepted in the US until hetero marriage had been severely weakened as an institution, divorce rates climbed, pre-marital sex became not only accepted but became the norm, and and out of wedlock birthes into single parent families climbed to a level that concerns many social scientists.

I wonder if the same is true of Norway, Spain and other countries?

IOW, the push for same sex unions may be a symptom and not a cause of the decline of traditional marriage.

Revising the constitution (as opposed to amending it) requires a supermajority. So amending the constitution for every law creates a problem in that undoing it becomes much harder.

Secondly, while CA has several ballet initiatives every year, there are several times as many laws passed every year. Creating a ballot and having people vote on these things in an expedient fashion is logistically difficult.

Under the full faith &credit clause, a state will recognize the laws of other states to the extent that the laws are not inconsistent with the state's public policy. I would expect that a constitutional amendment banning gay marriage would constitute a statement of anti-gay marriage public policy, and thus, CA wouldn't recognize a Mass. marriage. Thus, the more interesting question is recognition of such a marriage where no express statement of public policy in re gay marriage exists. Any con law buff out there can correct me if I am wrong in my above analysis.

What does this prop do for or against polygamy, or even outlandish unions of other kinds? Does it restrict marriages to one man and one woman?

It has already been established that, in addition to the (occasional) Mormon propensity for polygamy, which everyone seems to be against and considers illegal, there are already lots of Muslim polygamists in the US. Some are drawing welfare payments for all their wives too. Some are even first cousins. And it is perfectly acceptable to them based on their religion, which we are all supposed to respect to the hilt (unlike christianity, which it is deemed chic to trash and deride.)

If "marriage" can be defined completely out of context of cultural norms that have existed in every society known to man for millenia, then why stop with only two of anything in particular? Why not 6, and why do they all have to be either of legal age, or human even?

Is this an unintended consequence of the trend towards absolutism in "multi-culturalism" and "tolerance" and "equal rights" that we will just have to live with?

I leave it to the con law profs to slug that one out, but it does seem that they will have to argue from several sides of their mouths to reconcile all the above in some kind of legally consistent manner.

Once they find the "gay gene", homosexuals will be aborted as often as Downs Syndrome babies are today. Be careful what you wish for.

If that's what free human beings decide to do, then that's what they decide to do. Of course, if you consider every exercise of free will that is contrary to your chosen values to be abhorrent then there's probably no hope for you anyway.

We actually do have a little thing called evidence suppression that works pretty much exactly as you describe.

Protest the actions of the SC, yes, or vote them off the bench. But to take an extreme example to make a point, if in Alternate Universe World Dred Scott had been decided differently, would you advocate that we amend the Constitution to specifically say that, forevermore, blacks will be slaves -- not because you like slavery, you just want to send a message to the Court about not trying to legislate rights?

Of course not. Look, if you vote against it because you don't believe in gay marriage, that's a different matter. But if you believe in the right and vote against it to "send a message," you have no defense.

Hispanics voted 53/47 for Prop 8. Whites and Asians voted against Prop 8 by a very close 51/49. [The minority population in California has recently surpassed the caucasian population.] Blacks voted for Prop 8 by 70/30.

Because of the rampant, unrestrained illegal immigration encouraged by the Democrat Party for the past couple of decades, Hispanics now greatly outnumber African-Americans -- who are also a group considered by Democrats as belonging to their plantation when it comes to voting. Both groups voted in favor of Prop 8.

So now the chickens have come home to roost, and gay Californians have lost everything they had achieved on the marriage front. Maybe they should consider joining the Log Cabin Republicans. Couldn't be worse than the current situation, could it?

[Some other interesting San Francisco results: legalizing prostitution lost heavily; and voters told the S.F. Unified School District to reinstate ROTC training; and an ordinance changing the name of the city-owned Pollution Control Plant to the George W. Bush Sewage Plant also lost heavily. Seems the average voter has his head screwed on right, and it's only the wacked out city "leaders" that are out of touch.]

Among the Hittites, sexual relationships between a human and an animal were punishable by death.

However, there was an exception specifically between a man and his mare, provided that the man was not going to be a priest.

On the other hand....

Given the etymology of "inauguration" and its connection to pagan religious rights (observing omens, augury), maybe we could include the Asvamedha (Vedic horse sacrifice, includes symbolic, though not actual, sexual relations between the queen and the dead horse) as a part of the Presidential Inauguration ceremony?

I don't see how. The couple at the heart of Loving were married in another state. The court didn't seem to have a problem with full faith and credit - the decision was made on 14th amendment grounds.

Now, unfortunately, there were no principled conservatives that put forth such an amendment, instead chosing to codify their prejudices into the constitution. I am disppointed that they succeeded, but ultimately, it will be a short lived victory.

So you disagree with Eugene? Do you believe the federal judiciary will invalidate prop 8? If not I don't see how this will be short-lived - because of the mechanics of the California constitution, it's going to be harder to remove than it was to add, even assuming popular support. In my opinion, gay marriage advocates made a huge blunder trying to push this through the courts before the electorate was ready.

According to the text of the amendment, as soon as the amendment takes effect, only male-female marriages are valid or recognized.

Have any other Cal constitutional amendments had retroactive effect? When these particular same-sex marriages were contracted, they were legal and constitutional. Same sex couples have an estoppel argument against any change to their situation. Marriages are not exactly contracts, so I'm not sure that the impairment clause would apply.

Prop 8 does not empower anyone to downgrade marriages to domestic partnerships, so while it's a seemingly logical outcome, I don't see where the authority would come from. Can the state dissolve my marriage, sua sponte? Further, marriages are manifestly not the same as domestic partnerships, else why all this foofaraw? Thus if Prop 8 were held to have a retroactive effect (as if the Cal Supreme Court would do such a thing) the formerly married couple would have no legal relationship.

Yankev, the analogy to race is plenty apt -- I know this is disappointing to the hardliners because it establishes the historical narrative contrary to their wishes.

You're certainly entitled to your opinion. Here's mine:

California is a pretty liberal state, yet Prop 8 passed handily -- and "hardliners" didn't pass it, the majority of voters did. That majority would no doubt have a serious problem equating the limiting of marriage to one male/one female couples, with racial discrimination. People can't change their race, but they are able to change their actions [uncomfortable as that might be]. That makes the racial comparison invalid.

The country as a whole is more conservative than California. It's doubtful that the majority of U.S. voters would agree that defining marriage, as in Prop 8, is all that analogous with racial discrimination.

Once they find the "religious gene", religious nutjobs will be aborted as often as Downs Syndrome babies are today. Be careful what you wish for.

It's doubtful that a religious gene exists as such. People frequently lose faith and stop believing, and others are like Saul of Tarsus; the scales fall from their eyes and from then on they're true believers. But as I understand it, gays are gay for life. Correct me if I'm wrong.

Because of the rampant, unrestrained illegal immigration encouraged by the Democrat Party for the past couple of decades

Huh? Democrats are the ones bringing in a compliant workforce willing to work for far less than legal residents, under working conditions that no legal resident would put up with, lest he be summarily deported? I think not.

As one name currently in the news: the kosher meatpacking Rubashkins involved in the current illegal immigrant scandal are big Republican donors, according to The Des Moines Register:
Immigration raid: Plant official is GOP contributor

By JANE NORMAN • jnorman@dmreg.com • May 13, 2008

Washington, D.C. - A top official at the Agriprocessors Inc. plant in Postville that was the subject of an immigration enforcement action Monday is an active Republican campaign contributor, records show.

Sholom Rubashkin, whose family owns the company, since 2000 has made $23,750 in federal campaign contributions, according to Federal Election Commission records.
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That includes $5,750 to the Republican Party of Iowa from 2002 through 2004.

Rubashkin also gave $2,000 to Rep. Tom Latham, an Ames Republican, in 2004; $1,500 to candidate William Dix in 2006; $3,000 to candidate Stan Thompson from 2001 through 2004; $2,000 to Sen. Charles Grassley of New Hartford in 2004; and $2,500 to former Rep. Jim Nussle in 2000 and 2002.

Grassley collected another $2,000 each from Abraham Rubashkin, Leah Rubashkin and Ryfka Rubashkin, all of Postville, in August 2004

I'm not a lawyer. But I am a lesbian, married in California, to my wife. We were formerly domestic partners, and as any lawyer will tell you, getting married DID NOT dissolve our DP.

We do own property, and in CA, under DP laws, it is treated as community property, "married" or not.

As for marriage being about procreation, let me be the first to offer my proposition banning marriage between the elderly, infertile, and childless by choice couples. If marriage is about procreation, then they're next.

Historically, marriage has been about PROPERTY. The dowry, an exchange of goods or money for a woman. Not about love, or procreation. It was a contract between two families. Later it became a contract between two consenting adults. If it weren't a contract, why all the financial benefits (and responsibilities mind you).

Today I woke up and looked at my 2 1/2 year old twins (procreation, hmmmm, guess that's another post for you) and prayed (yes I DO go to church) that they will see a time when their mommies can be married without people voting on whether or not it's ok.

Because of the rampant, unrestrained illegal immigration encouraged by the Democrat Party for the past couple of decades.

This is wrong. Sort of. The reality is there are elements of both parties that want to look the other way on illegal immigration. On the Republican side you have business interests who stand to make a lot more money with sub-minimum-wage, nonunion labor. Bush and McCain are both in this camp.

On the Democrat side you have the strategists who assume they'll all be Democrats eventually, as well as the union bosses who think illegal immigrants will eventually join unions (this at the expense of current members, especially blacks).

Today I woke up and looked at my 2 1/2 year old twins (procreation, hmmmm, guess that's another post for you) and prayed (yes I DO go to church) that they will see a time when their mommies can be married without people voting on whether or not it's ok.

There are a lot of other people praying they'll have some say in changes made to one of the bedrock institutions of society. In any event, what's stopping you from getting married? Or is state recognition for your relationship the important part?

As for marriage being about procreation, let me be the first to offer my proposition banning marriage between the elderly, infertile, and childless by choice couples. If marriage is about procreation, then they're next.

Elderly infertile and childless couples nevertheless have qualifications for marriage but gay couple don't.
It is like a lawyer who is not practicing law. Why don't we revoke law school diplomas from any lawyer who work as a computer programmer. Or for any doctor who is politician.

Ritght to procreate and concive is a fundamental part of the marriage, an no one have a right to remove that part, since it contradicts 9th amendement.

We all know that marriage gives a unconditional right to concieve, but it looks like some people want to revoke that rights from heterosexual couples.

Because of right to concieve is essential part of marriage, state prohibit a marriage between close relatives.

No gay and lesbian no judge have a right heterosexual marriaed couple essential right to procreate.

no society in recorded history that defined "marriage" as anything except a union of a man and a woman, other than a handful that have done so very recently, and -- perhaps coincidentally, perhaps not -- long after their societies declined from previous accomplishments

First of all, good nationalistic slam. Secondly, here; a history of homosexual marriage in the South Pacific. This comes at the bottom of a long page about homosexual relationships, including marriage, in antiquity.

Nutbump:

Because of procreation. Marriage has a very important part - procreation. Equalizing homo and hetero couples you essentiallty abolish procreation.

And yet there is no law requiring married couples to have children. Or forbidding sterile individuals from marriage. Homosexuality does not "abolish procreation", especially on a societal level; start with adoption, move to artificial insemination and more complex genetic procedures, and finish with "so what if 10% of the population decides not to have kids?"

Yankev again:

So, if I understand the forces of tolerance correctly, sexual desire is an immutable traits like race,

Correct; why is it easy to believe we can be hardwired for cross-gender attraction, but hard to believe we can also be hardwired for same-gender attraction?

or who believes there is a moral component to homosexual behavior (as opposed to homosexual orientation)

I'm with you on the ad hominum attacks on religion, but that's another conversation. I've never understood the logic used above: it's ok to feel a certain way, but not to act on it? Ridiculous. I know someone will compare it to wanting to murder versus actually killing someone, but that's not a fair comparison. The fair comparison is allowing someone to want to be Christian, but not allowing them to act upon or express their beliefs.

Final thought:

Put me in the column for getting the government out of all marriage. They should issue the certificate and leave everything else to the couple's church. We already have this model in place: the State issues birth certificates and death certificates, but does not conduct baptisms or funerals.

(1) If I entered into a marriage, I will have marriage or nothing. The legislature can't try to approximate my intent and give me the "next best thing." If I want to buy an apple, you can't take my money and give me an orange. If you can't do that, you can't do what you are asking. Mind you, the state did take my money. It took my money for a marriage license.

(2) Your missing the point about retroactivity. The "valid or recognized" language is misleading. In order for laws to be retroactive, they have to be written to go into effect retroactively. You are putting the default on the wrong side by suggesting that the proposition needed to say it was NOT retroactive. A law that says "stealing is a crime" doesn't get applied retroadctively, even though it is stating an ongoing condition. If you did it yesterday, it was still a crime under the definition, but we all know that it has to be future-looking. What's an example of any law (civil or criminal) that is imposed retroactively without explicitly saying it's retroactive?

Importantly, what if Prop 8 passed in 30 years from now? Would you still think that it would be okay to retroactively end the marriages? What about marriages that yielded children? Marriages that paid married people dual income taxes for years? There's not LEGAL difference between that situation and this. The only difference is practical (something seems easier about "nipping" these in the bud)

(3) The amendment talks about marriage. It doesn't say that sexual orientation is not a suspect class in the equal protection clause. So now you actually have two conflicting clauses, not one that overrules another directly. This suggests that the constitutional question is not as easy as you suggest (without analyzing). What happens when constitutional clauses are inconsistent? The Court suggested already that if marriage isn't equal, then all civil "marriages" will be reduced to civil unions. I don't think that's out of the question. It's a matter of changing a few statutes and the name of the "Civil Union License."

Daytripper, thank you for catching my inaccuracy. What I should have said was

no society in recorded history that defined "marriage" as anything except a union of a man and a woman, other than a handful that have done so very recently, and -- perhaps coincidentally, perhaps not -- long after their societies declined from previous accomplishments

In the same post, of which this quote is a partial emendment, you also used the term "false analogy." Praytell, what is it called when you make a specious connection between two unrelated items?

We actually do have a little thing called evidence suppression that works pretty much exactly as you describe.

Umm, that's my point.

It's good to suppress evidence to discourage abusive police, even though suppressing the evidence can lead to criminals getting out and good people being hurt or killed.

So why shouldn't we also "suppress", as best we can, the fruits of legal abuse in the same way that we can suppress the fruits of legal abuse?

But for all those people who were making noises about voting for Prop 8, not because you care about gay marriage but simply to give the finger to the California supreme court, well, I have no words for you. Stripping another human being of their rights simply because you object to how they finally got them is abhorrent.

Let's do some substitution here.

"For all those people who make noises about letting criminals go free, not because you want to free criminals but simply to give the finger to abusive police, well, I have no words for you. Endangering a criminal's possible victims simply because you object to how the evidence against the criminal was collected is abhorrent."

Did you miss the part where it said we ARE married? AND Domestic Partners?

Well, it wasn't clear based on the last sentence. I live in Northern California - there are lots of gay couples I know who are married in some church or other, but not married in the eyes of the state. So if you're domestic partners, and you have your church wedding, what's the problem? Why is it so important the state uses the word "married" instead of "partners"?

Don't get me wrong, I'm sympathetic to your goals, and I think voting against the proposition was the right thing to do. I just don't think state recognition of anybody's marriage is a basic human right, and using the courts to go around the voters was neither the right thing to do nor smart political strategy.

Oh, and could I just add to the chorus of people saying Gavin Newsome needs to put a sock in it? His brand of public gloating and grandstanding may make him politically unassailable as mayor of San Francisco, but it sure doesn't bring new people into the fold - quite the opposite.

I completely disagree that it's not important what word the state uses. My rights as Domestic Partner are not transferrable to another state (or country) that recognizes gay marriage unless I am MARRIED in my state. If I am not married in the eyes of CA, but get almost all the same rights through DP, that's fine AS LONG AS I NEVER LIVE ANYWHERE ELSE. If I want to move to Massachusetts, then I will have to get married in Massachusetts to take advantage of the recognition of gay marriage there. However, a straight couple, married in CA, is married in all states.

The Supreme Court's JOB is to evaluate the laws passed by voters for their adherence to the Constitution. Period. They did their job.

I'm having a hard time taking your link seriously when it states that a South Pacific tribe celebrated homosexual marriage and regarded heterosexual marriage as "sinful."

Why would not such a society die out? Even if true, as they say the exception proves the rule: throughout recorded history, societies almost uniformly suppressed homosexual marriage. When something as widespread as that occurs throughout cultures worldwide, there is a basic underlying reason [others can speculate on what that reason is].

And the link is from Wikipedia, so the odds of it being accurate are about 50/50.

I've got no problem with gays adopting kids, or conceiving their own if they want to. Better for the kids than an orphanage or abortion.

And I'm all for the government getting out of the marriage business entirely, if a sound way is found to protect the children from broken marriages.

I have always believed that a prime motivation for gay marriage is the coveting of financial benefits conferred on spouses. But why should shareholders, taxpayers and small business owners be required to provide medical, 401-K and other benefits to yet another group that provides zero benefit for the business? There is way too much coercive wealth transfer [AKA: theft] going on already.

It's not your belief that homosexual sex is immoral I dislike, it's your conduct based on that belief I want to outlaw.

Given that my conduct is limited to voicing my beliefs (and in very limited circumstances and venues, at that, given the economic and political risk of voicing them too publicly or in the wrong company) and voting against the judicial redefinition of long accepted terms, and given that I have at times voted for banning discrimination against gay people in housing and employment, thank you for clarifying your views on tolerance and freedom.

Jollyblue, as to the nationalistic slam, societies that encourage sexual immorality usually decline within a few generations, particularly when traditional marriage declines as well. Tolerance diminshes as well, as witness Norway's recent insistence that no Jews attend the Kristallnact obsevance a few years ago, or Holland's tolerance for gang rape and murder so long as the hoodlums involved are Muslim. As to Melanesia, yes, I suppose I limited my focus to societies that had actaully contributed something of note to world civilization at one time or another. Not very multi-culti on my part, I admit. I did not see much about actual solemnization of homosexual relationships in the other societies mentioned in the wikipedia article.

The Supreme Court's JOB is to evaluate the laws passed by voters for their adherence to the Constitution. Period. They did their job.

I see. So for the 150 years or whatever California has been a state, all the other SC terms the court just missed that part of the constitution? Were two pages stuck together, say, or one of the pages had writing on the back and they just missed it all those years? Don't you just hate when that happens?

This is what conservatives mean when we talk about judicial activism. A living constitution is no constitution at all, it's just rule at the whim of whomever currently resides on the court. Anyone who's taken high school chemistry knows how to work backwards from the "right" answer.

The really sad part is I believe if you ("you" as in the supporters of GM) had stayed out of the courts you would have won within a few years. Maybe already. I wouldn't underestimate the anger that's brewing in CA over the continual gutting of initiatives by the courts, sometimes on the flimsiest of pretext.

I'm having a hard time taking your link seriously when it states that a South Pacific tribe celebrated homosexual marriage and regarded heterosexual marriage as "sinful."

Yeah, I had a good chuckle about that one for a while myself. But the comment I was responding to was looking for ANY historical evidence; I was just pointing out that such existed.

Why would not such a society die out?

Because in every society, people occasionally sin. It's why we have forgiveness. The effect you're describing has happened though. In America. To the Shakers. An extremely Christian heterosexual (sort of) culture.

Just sayin'.

Even if true, as they say the exception proves the rule: throughout recorded history, societies almost uniformly suppressed homosexual marriage.

I've never understood the logic of the "exception proves the rule". Seriously. I thought that exceptions disproved the rule, or were also rules that provide further clarification. The whole "I before E" thing.

I think what you're saying is the fact that this instance feels so remarkable reinforces how rare it is. This is true, but we already knew that homosexuality is an extreme minority group, so this would be the consistent finding that proves the rule.

And the link is from Wikipedia, so the odds of it being accurate are about 50/50.

Yeah, well, you got me there. :)

Yankev:

Jollyblue, as to the nationalistic slam, societies that encourage sexual immorality usually decline within a few generations, particularly when traditional marriage declines as well.

Except in the case of the British Empire. As I learned it, Britain was a very sexually repressed culture at the time. This is just evidence that there can be other reasons cultures fail, which creates the possibility that the societies you mention had extreme sexual permissiveness AND some other condition, or possibly that the sexuality and downfall were both symptomatic of some other issue, rather than the cause.

As to Melanesia, yes, I suppose I limited my focus to societies that had actaully contributed something of note to world civilization at one time or another.

The Ilongot people have a word that describes the emotion you feel upon taking your enemy's head in combat; you don't consider this a notable contribution?

More seriously, this takes us back to Greece, Rome, and quite a lot of the ancient Mid-East and Asia. You rejected these examples earlier for reasons I did not quite understand; you gave the example of Greece where homosexual relationships occupied a higher social space. So if that's the route you want to go, what is the institution you want to create in this country for gay couples that is superior to standard marriage?

Beyond that, it feels like the argument in opposition to gay marriage has come to rest at the point of allowing legal relationships as long as they're called something else. Is that really where we're at in this country? We're back to "separate but equal"? We're seriously telling Kim she can't get a marriage but this other thing is just as nice, honest! I reject that.

The country as a whole is more conservative than California. It's doubtful that the majority of U.S. voters would agree that defining marriage, as in Prop 8, is all that analogous with racial discrimination.

True enough. I've had to revise my timetable on it.

Also, nutbump, human reproductive cloning is perfectly legal in much of the world. Since I don't think it's illegal to bring a cloned fetus back into the US in utero (or if such a prohibition is even constitutional, which i doubt), then you've got serious issues with your argument (at least as far as the law goes).

I am skeptical about using Romer v. Evans to challenge this amendment, as Romer seems like a one-off result-oriented case whose reasoning we're supposed to rush past and forget about 10 minutes later. You know, alot like that PGA golf cart case, or the equal protection holding in Bush v Gore.

Consider this example. Suppose the citizens of some state with a provision mirroring the 2nd amendment were worried that their state courts might find a right for felons to possess firearms in their homes (which some have argued for as a reasonable interpretation of Heller.) Those citizens pass a constitutional amendment to specifically state that the legislature may ban any and all firearm possession by felons. Do the courts then apply Romer and invalidate it, on the basis that, as went the "reasoning" in Romer, the amendment prevents a specific class of people (felons) from securing their rights through simple legislation and thereby burdening their cause with a political disability that other citizens do not have to overcome when seeking to secure their rights?

Perhaps because you are unfamiliar with the use of "prove" to mean "test" rather than evidence. As in proving grounds (a testing site, not a court room), proof reading, 100 proof alcohol (tested by mixing it with gunpowder and observing the color of the flame), or "proof of the pudding is in the eating."

Proving one's mettle does not evidence that one has it; it tests whether one has it.

I wonder if bullet-proof and fire-proof have similar roots; the item was tested by being shot at or subjected to flame, and passed the test.

Good discussion. One thing I'd like to point out, though, is that the Shakers were neither hetero nor homo; they were asexual; zero sex. It was a main tenet of their religion. They only maintained their numbers or grew due to new converts. Eventually they couldn't recruit new members, and the sect died out.

Just because something was acceptable in the past (i.e. infringing on human rights) doesn't mean it can't be considered unacceptable in the future. Isn't that the point of human evolution, to learn from our mistakes? To me, gay rights are the same as any other civil rights. It is disappointing to me, considering how far we have come in terms of civil righs, electing an African-American as president and even having a women on the republican ticket, that we seemed to have taken a step back when it comes to gay rights. Everybody deserves equal rights, and it seems to me that with this ban, gays are being treated as second-class citizens or even subhuman. I predict that the road to gay marriage will be a long, painful one, but just like yesterday, when we finally realize our mistakes and embrace equal rights, it will be a triumphant victory.

And by the way, the argument about aborting "gay" fetuses seems to me a lot like Eugenics, a popular idea among the Nazis. I hope you are not trying to compare your ideas with the Nazi movement, because if so, it seems to me that human rights are not your priority.

The issue is about forcing homosexuality on the mainstream of America. You can be who you are but don't expect everyone else to accept this deviant behavior. Anatomy is all you need to answer this common sense question. If you believe criminals can be changed by treatment, then the same should be true of homesexual behavior.

if marriage is only intended for procreation, and procreation in marriage is the only way to produce productive members of society (as opposed to leaching wastrals who violate our laws and drain our taxpayers of their hard-earned money) then we're in trouble! apparently my boyfriend and i (who do NOT want to get married at this time) cannot have children. because you see, we aren't married so our kids will be drains on society. so why should i be allowed to have babies? do you want to control my fertility rights? say that only married couples can have babies? oh wait, they're doing that with adoptions already in another state. well, gay couples will make bad parents i guess, so better make sure they can't adopt babies. regardless of the fact that i have the unfortunate acquaintance with quite a few heterosexual couples who honestly should not have had children based on financial reasons, not to mention the physical abuse i've seen (i had bad neighbors). the big difference i see between heterosexual couples and homosexual couples with children? you never see a homosexual couple with unwanted children. you don't really hear abuse stories.

cloning, by the way, for those of you who don't know. doesn't actually happen in the way you think. when a lesbian couple gets dual-impregnated, i'm pretty sure they fertilize the eggs with sperm from a donor (either known or anonymous) and practice in-vitro fertilization where each woman carries the genetic child of the other. the actual process of cloning that is illegal would also be impractical since it would literally capture a snapshot of the woman genetically at her current age. giving birth to a baby with 20+ year old DNA will severely curtail the ability of the baby to live a full life, since they start with 20 years missing. (and if you care to wonder why i know this - please understand i'm a biologist with a focus on genetics). remember dolly, the cloned sheep? she died because her dna was OLD.

here's another point to ponder - if you define marriage as a religious state then, well hell! i can't ever get married! why? cause i'm an atheist. same with my sister. so well, she and her husband, well, they don't believe in god so their marriage is now not valid because it wasn't performed in a church. however, their marriage IS recognized, while gays and lesbians who attend non-denominational and denominational churches and believe, love, and revere their faith in god cannot have a recognized marriage because, well, it's against their religion to marry even though nothing in their faith actually forbids it but other people who really wouldn't be impacted in any way by their union think it's a bad idea. technically, being an atheist puts you against god and well, that's also against religion. but i'm not being penalized for it and good, god-loving men and women are. remember, the bible was written by men. and contradicts itself an awful lot. even though i'm not a believer, i still own a copy and have read it. if you study it, you can pretty much find a yea or nay on any issue contained inside.

oh, and back to the point about non-married couples and single parents with children. so, tim robbins and susan sarandon (who never exchanged vows or married) will have to face the inevitable fact that their children, who were born out of wedlock, will become drains on society and basically horrible people. poor them. oh, and you know, that same argument also suggests that the children of marriages will always be smart, upstanding members of society. well, you know, something there doesn't seem right to me. oh, well, better check the parental status of all the criminals in prison. make sure they don't have a mommy and daddy who are married. oh, their parents are married? really? well, they must be innocent then! no way they could have committed those crimes! caught red-handed you say? no way! their parents are still together! nah, better let them go!

also, marriage and domestic partnerships may confer some of the same rights but the major difference is marriage is recognizable across boundaries. domestic partnerships are not. did you know canada recognizes gay marriage? did you know that gay couples married in canada are recognized as married, at least in the state of michigan? i bet a domestic partner from california isn't, though. i know a domestic partnership wouldn't fly in indiana, where i live.

oh, and on the whole genetics thing - there's no gene for homosexuality. it's a pretty easy pattern to see if you know how to draw out a genogram, which is in essence a family tree tracking a trait in a family. if you know how to read it, you can tell even tell whether a trait is recessive, dominant, etc. and before you say it, yes, you can in fact track a trait that doesn't result in biological children. if you couldn't, then deadly / sterility-causing traits couldn't be tracked.

anyway - my point is, the argument that gay marriage will undermine marriage is a hollow argument with no real basis in fact. if you track the health and well-being of children being raised by same sex parents you can see that they grow up to be well-adjusted. arguing that you HAVE to have marriage for procreation is just flat out contradictory to every unmarried couple / single parent / teen pregnancy out there. there isn't a switch that turns fertility off. there isn't a switch that makes every marriage produce children. the real difference between homosexual couples and heterosexual couples is the chances of a homosexual couple having a child by accident (no "woops!" there!) are 0 (unless one of the partners is failing to tell the other something). so when they HAVE children, you know for certain it isn't for welfare, it's because they WANT to.

oh, and denying same sex couples the right to get married will not suddenly mean that they're going to wake up and say "well, i can't get married to my partner, so i guess that means i'm going to have to just go out and get myself straight! aw shucks! they caught me out!" honestly, i don't see a lesbian suddenly deciding she likes men any more than i can see a straight man suddenly deciding he likes men. trying to force them into a situation like that only leads to disaster (as evidenced by the failed marriages of gay men and straight women and vice versa - society said they had to get married so they did. those unions tend to be unhappy and soulless and always for the better when they end).

also, i don't think that letting a man marry a man and a woman marry a woman means that suddenly you're going to wake up and decide you yourself are, in fact, gay. regardless of the way people think - homosexuality in our society will remain in the minority, not the majority. we'll still have plenty of people out there making babies. and who knows, maybe some of them will be productive members of society even if their parents aren't married.

To the 70% of black California voters (75% of black women voters) who supported Proposition 8, here's something to consider: it doesn't matter who's in the White House or who's in Congress, when you're applying for a job, what matters is who's reading your resume and what s/he does with it.

If your name is Lakesha, Darnell or anything similar, those of us who work in HR presume you're black. Because of the discrimination, exclusion and hate you chose to embrace &uphold, those of us who are gay and work in HR may now pause to consider whether we should contact you for an interview or simply place your resume at the bottom of the pile. Many of us HR folk now receive 500-1000 resumes per opening due to the terrible job market and high rate of unemployment, so your chances of landing an interview - let alone a job - are slim. Due to the selection you made on yesterday's ballot initiative, you may now find it even more difficult to find a job. No bi-racial President and no Democratic majority in Congress can prevent the economic retribution you just might face from the disgruntled gay American holding the key to your next employment opportunity.

Remember: you made your decision on Tuesday, November 4th. When I receive your resume, I'll make mine.

and using anatomy as your argument is also bad. sorry, but the penis of a man can be inserted into just about anything, including grapefruit. also, how is allowing two people to get married forcing anything on you? do you actively look for wedding rings on the couples around you? if i were married, would you be forced to acknowledge it? or would i even care to tell you? honestly, is it any of your business if they're married? why is defining the relationship between two people such a public matter? do you really think that a married gay couple is going to force you to watch their bedroom antics? personally, i think not.

here's another question for you - especially since my state doesn't recognize domestic partnerships of any kind - same sex or opposite sex. should a stay-at-home mom be denied healthcare simply because the provider in the family is also female? stay-at-home dad? they wouldn't be if they could be married. but they can't, so mommy can't get sick.

oh, comparing criminals and gays. how fun. did you know that a lot of criminals make an active choice? they choose to commit their crimes. homosexuals don't go out one day and say, you know, i think i'm going to be gay for a while. you can't treat something that isn't a problem.

and as for forcing something - remember what you just said whenever you shove your religious pamphlets in my face. also remember that i don't shove them back. why? because i believe in the rights of everyone to their own religion. to have their own beliefs. i'm not going to get upset because somebody put the nativity scene on the lawn of the local library. it doesn't upset me nor does it affect me even though it doesn't hold with my beliefs. so why should two people conducting their own, private lives affect you? oh, wait, that's because deep down, you feel insecure in yourself and your faith and you feel the need to project it on to everything that challenges it, whether it has anything to do with you or not.

WHETHER YOU THINK IT IS CONSTITUTIONAL OR NOT, THE ISSUE IS THAT THE MAJORITY OF THE PEOPLE DO NOT, I REPEAT, DO NOT WANT GAY MARRIAGE TO HAPPEN! PERIOD. WE SIMPLY DO NOT LIKE IT, NOR ACCEPT IT. HAS NOTHING TO DO WITH POLITICS.

HAVE YOUR OWN SPIRITUAL UNIONS IF YOU WISH AND KEEP LOVING EACH OTHER THE REST OF YOUR LIVES, BUT LEAVE OUR TRADITIONAL FAMILIES AND MARRIAGES THE WAY GOD DESIGNED THEM. EVEN ANIMALS FOLLOW THAT RULE!

Everyone seems to accept without comment the idea that same sex marriage is a recent innovation, or as Yankev says, "By contrast, I am aware of no society in recorded history[] that defined 'marriage' as anything except a union of a man and a woman..."

The gist is that there is a rather extensive history of same sex unions, including marriage-like ceremonies, in medieval Europe, which was only later suppressed by the church. We're less aware of it today for that reason, so seeing it takes a little digging.

oh, and one more thing - just because i am a straight woman in a relationship with a straight man does not mean i have to get married. honestly now. i'm tired of people telling me TO get married simply based on the fact that i have been with MY partner for almost eight years. we aren't ready for marriage but there are couples out there that are. and those people should be allowed to make the choice for themselves, regardless of their sexual orientation.

Due to the selection you made on yesterday's ballot initiative, you may now find it even more difficult to find a job. No bi-racial President and no Democratic majority in Congress can prevent the economic retribution you just might face from the disgruntled gay American holding the key to your next employment opportunity.

Remember: you made your decision on Tuesday, November 4th. When I receive your resume, I'll make mine.

Yup, a temper tantrum. And this one violates Title VII.

I was always offended by the comparison of the black civil rights movement and the gay "civil rights" movement. The gay movement just seemed a way for some white people to pretend they're victims of discrimination, just like those long-suffering blacks. Well, thing is, blacks did suffer severe racial discrimination. I'm not sure continuing the discrimination is a good way to make that analogy.

i don't believe in god so your argument is spurious. to me, god didn't design squat. that was a human invention and like all human inventions - gets an overhaul every so often. just like when your traditional marriages used to prohibit blacks and whites from getting married. that got overhauled. so why not this?

and animals don't follow those rules. or are you saying that my cat wasn't a big slut and rubbed against every living creature she saw when she was in heat (including other female cats). if animals really lived by the same rules then we'd live in a society ruled by large harems. very few species actually have truly monogamous relationships the entirety of their lives (and hint hint - humans aren't one of them - we're actually hard-wired for promiscuity)

lol you don't think gays haven't been discriminated against? that gay men haven't been beaten and killed simply for who they are? it's a good analogy because the discrimination is real. and discrimination isn't a one-way street. it doesn't just define the struggle of a specific group of people. it is defined by anyone who, upon perceiving the differences in another, treats them differently based on these differences (in a negative fashion). refusing someone a job because they're black is the same as refusing them a job because they're gay. refusing to acknowledge that discrimination does exist against whites simply because, traditionally, whites are the majority is a type of discrimination. the point i'm trying to make is that discrimination isn't simply about skin color, it's about differences. i know i've been discriminated against because i'm female. i've been discriminated against because i'm white. it was still discrimination even if it came from the other shoe.

basically - discriminating against someone based on their skin color, sexual preference, religious beliefs, etc... that's wrong. refusing an application because they MIGHT have been in the 70% who voted yes is wrong (also discrimination). you might ignore or turn down a job application for someone who would be the best employee ever, based on nothing more than a perceived idea of how they voted. and they might have been one of those who voted "no".

remember, please, that blacks aren't the only ones who have been discriminated against, or sold into slavery, or been the victim of a hate crime. nearly every group of people in this country can lay claim to a form of discrimination.

I was always offended by the comparison of the black civil rights movement and the gay "civil rights" movement. The gay movement just seemed a way for some white people to pretend they're victims of discrimination, just like those long-suffering blacks. Well, thing is, blacks did suffer severe racial discrimination. I'm not sure continuing the discrimination is a good way to make that analogy.

Loving isn't, at least not to any rational person who reads it the snippet provided above, won't provide any traction for overturning Prop 8, as SSM lacks the essential component of being "fundamental to our very existence and survival.... " Unless somebody working in a biotech lab has whipped up something we don't know about yet, SSM doesn't nothing to contribute to our "very existence and survival."

One poster mentioned how this should have been a legislative matter, not left to the people. Uh, no, not in our political system, and more importantly, not under our political philosophy. The legislators act as our agents. They are our delegates, it is our power they exercise, and we reserve the right to exercise it ourselves. It was the gay activist's overstep by doing an end-run around the explicitly expressed wishes of the electorate that set up Prop 8.

And they continue to try to poke a thumb into the collective eye of the voters. What's ironic is they're attempting to say that the immediate judgement of the electorate of a polity with full suffrage and a population of 40 million is trumped by the wisdom expressed in a 140 year old law as understood by a whole FIVE of NINE people today, passed by a population of 38 million, of whom the women had no vote, and roughly another third was disenfranchised as a result of the Civil War, so that the judgement of a minority of the modern polity can be use to redefine an institution that is the result of thousands of years of human social practice.

All existing Domestic partnerships are invalid too under proposition 8. In fact, they were the original targets.

The wording is:
A marriage between a man and a woman is the only legal union that shall be valid or recognized in this state.

The only valid form of union is a marriage. And marriage must be between a man and a woman.

It may be argued that the few existing domestic partnerships that are mixed-sex are in effect marriages, but I don't think this argument has merit. Neither does the argument that a domestic partnership is not a union within the plain meaning of the words of Proposition 8.

The question of "conversion" from same-sex marriage to any other form of union does not therefore arise. There is no other form of union now.

Ignoring the philosophical, religious, moral, and other arguments that are swirling around here, I actually have a legal question.

Will it be assumed that California pre-Prop-8 same-sex marriages will continue to be recognized in areas where the State government recognizes the marriage of other states? Or does Prop 8 dissolve that, and force them to re-apply for a marriage license in the State they wish to move to?

And if the marriage could still stand in another state, could a same-sex couple move to another state, remain there, and return to CA if Prop-8 is overturned by either courts or legislature?

What is the purpose of having a constitution that can be amended by 50% + 1? Why not just amend the constitution for every law, then?

First, it takes more signatures to get a constitutional amendment on the ballot than it does to get a statute on the ballot. I don't know the exact numbers and I am too lazy to look them up, but the number is significantly higher to qualify a proposition for the ballot that is intended to change the constitution than a proposition intended to enact a statute.

Second, the legislature and the governor can amend a statute (unless it was passed by proposition), but they cannot - on their own - amend or revise the constitution. They must submit a constitutional amendment or revision to the voters for ratification.

Third, at least in theory, voters weigh a constitutional amendment more seriously than they weigh a statute because of the nature of the constitution. On this theory, they are less likely to pass something that looks too technical (e.g., a proposition regulating power generation) as a constitutional amendment. I doubt this part is true, but it is a theory.

So if you are the voters and you have the signatures to get your issue on the ballot as a constitutional amendment, and especially if the issue is very easy for most voters to understand (like SSM), there is no reason not to pursue your strategy. But if you are the legislature or the governor, it doesn't work.

What has happened in the past when a state has narrowed the definition of marriage? This cannot be the first time that a state has originally said that the group of X can marry, and later said that only X-1 can marry, can it? What happened to the -1 before? For example, the state of [Pick One] originally said that first cousins can marry. Many did. Then it said they couldn't. Or it said that marriages between first cousins were not valid or recognized. So were the cousins that were already married at the time that the law changed divested of their marriages?

I don't think the question of divorce after a person has married is analogous. Divorce is optional, at least to one party. Allowing divorce is equivalent to CA refusing to enforce a contractual provision saying that a contract may never be terminated without both parties' consent. That is different from saying that a majority of a state's voters may declare a contract void after the fact even if both parties to the contract still want it to be valid. If a state could do this, it would mean that a state could divest any of us of our marriages at any time (or convert them to domestic partnerships) by narrowing the definition to a group that excludes us.

The amendment reads "...in California", not "...by the state of California". The plain language suggests that localities are not allowed to recognize marriages between same-sex couples either. There's also the issue of couples married in Massachusetts or Canada or Spain or wherever who then move to California—are they legal strangers in California or automatic domestic partners? Is there anything to prevent the legislature from passing a law that says that any same-sex couple in what is recognized as a marriage in another jurisdiction shall be deemed domestic partners in California?

Interestingly enough, this will create a class of non-divorced, non-widowed people who were formerly married. Californians (and others) so far have had only half a year to get to know their same-sex married neighbors; now they will have several years to get to know their same-sex neighbors whose marriages have been invalidated.

If your name is Lakesha, Darnell or anything similar, those of us who work in HR presume you're black. Because of the discrimination, exclusion and hate you chose to embrace &uphold, those of us who are gay and work in HR may now pause to consider whether we should contact you for an interview or simply place your resume at the bottom of the pile.

Cool, since Muslims attacked the US are you going to discriminate against Muslims too?

I seem to have missed it, apart from the fact that you are very angry right now.

and animals don't follow those rules. or are you saying that my cat wasn't a big slut and rubbed against every living creature she saw when she was in heat (including other female cats). if animals really lived by the same rules then we'd live in a society ruled by large harems. very few species actually have truly monogamous relationships the entirety of their lives (and hint hint - humans aren't one of them - we're actually hard-wired for promiscuity)

Okay, scrolling down, now I understand your point. You think it is fine for humans to behave like animals. You are angry at anyone who thinks that humans should aspire to overcome their animal appetites and desires. Animals have no concept of rape, murder or theft. They take whatever they want from those who are weaker. Can we agree that humans should not emulate those traits?

Humans are hard wired with many of the dame desires as animals -- ask the parents of any toddler. Society depends on parents to teach their children not to act like animals.

JDS: "Will California domestic partnerships ever be made available to opposite sex couples with both less than 62 years of age, so they can get the insurance etc benefits of domestic partnership without having to pay the Federal marriage tax penalty?"

There are mixed-sex domestic partnerships in California. My boyfriend and I have considered registering with the state, as his health insurance is better than mine. I don't know at present what percentage of mixed-sex couples living together in CA are registered partners.

Maria, how does my dad — who is gay — getting married in any way affect your family and marriage?

In a roundabout way, rieux validates my post way upthread.

A crucial difference between blacks and gays is that blacks cannot change their race, whereas the distinction that makes gays what they are is their actions; it's what they do that sets them apart.

But they don't have to do what they do. Nobody makes them do it. Rock Hudson was a leading ladies' man in numerous Hollywood movies. He probably didn't enjoy kissing all those starlets. But he did it anyway, and as a result he got the benefits: fame and fortune. He could have just as easily refused, and gone his own way.

As rieux correctly points out, some gays get married and live heterosexual lives [although it must be uncomfortable for them]. That has always been the choice for some gays, for societal, religious, or other reasons.

To reiterate: discrimination against a particular race is wrong because the victims can not change their race. But gays can, as rieux acknowledges above, change their behavior and reap any benefits that accrue.

But by the gays' own argument, I am my employer's victim, since he makes me behave in ways I do not like -- such as setting my alarm clock for 5:30 a.m. That's uncomfortable behavior from my perspective. He is denying me the right to sleep in. But I do it for the benefits, even though I don't want to. And it's not discrimination.

I have no animosity toward gays. But regarding marriage, they want to have their cake and eat it too. The choice is pretty clear: do what society insists [marry the opposite sex] and get the benefits of marriage, or live as domestic partners. Or get married by a sympathetic minister or rabbi, without official government sanction.

Society has the right to set parameters, such as defining who can drink alcohol, or defining marriage, or re-instituting the draft. If some folks don't like those parameters, that does not automatically equate to denial of rights. In the case of Prop 8, everyone still has an equal right to marry someone of the opposite sex. Like Rock Hudson, gays have to decide if the tradeoff is worth it.

Let me be very clear to you or anyone else on this board. In California, (and that is all anyone is talking about) AB 205 gives registered domestic partners the same rights as married spouses.

Prop 8 did not overturn that. Prop 8 did not make anyone a second class citizen, contrary to what the proponents wanted it to do. I am in a long term relationship with my registered domestic partner and you can take your antiquated, broken institution back into your cave and watch as it crumbles before your very eyes (as it has in the past 50 years).

Gays will take care of themselves, they always have. In the end we will get everything that we want. For me, that is a much more modern, considerate, civilized, version of what you call marriage.

I will validate my relationship. I will not give you the power to do so.

I'm sorry Smokey, but your argument implies that there is something fundamentally wrong with being gay. By saying that they should lie or pretend to be something they're not is implying that their way of living is wrong. It wasn't so long ago that Jews in Eastern Europe pretended to be Christian just so that they could protect their right to live. Of course Jews can convert to christianity (or pretend to at least), and according to your argument, it was okay to discriminate against Jews because they could pretend to be something they're not. I'm sorry, but I can't help but feel disheartened by your argument. You will never appreciate what discrimination feels like until you encounter it yourself. And I really hope you do (not out of any personal hatred), but so that you could hopefully open up your mind a little more.

You are right, except this is the beginning of the long road for the "religious wrong" to try and take even DP away. Mark my words, this is the door opening to that. DP does NOT transfer between jurisdictions. Therefore, if you move to Massachusetts, you would have to get married there, because your DP in CA is meaningless to them.

Antiquated or not, marriage is the only option, unless straight couples agree to "civil unions."

Of course, the real issue lies at the Federal level. However, at this point, a Federal fight is a lost cause. I think I will have to wait for my son's generation to fight that fight.

My point was to remind not only the uneducated Prop 8 folks like Zoe, but also other gay people that you have to take matters into your own hands and create the life you desire. You can and should do that. I understand your concern about AB 205 getting overturned in light of the recent events. However, recent events I hope have educated gay people and their supporters about what course to take in the future. We need to proceed with confidence to create what we want. Again, Marriage is broken. Straight couples could benefit themselves by forging ahead with another form of the original idea-I urge them to do so.

Oh yeah, my son, who I adopted in 1998. My partner and I were chosen over 5 other straight couples by the straight birth mother. I guess, in some cases, Northern Louisiana can sometimes be much smarter and forward thinking than California.

I am in a long term relationship with my registered domestic partner and you can take your antiquated, broken institution back into your cave and watch as it crumbles before your very eyes (as it has in the past 50 years).

More examples of love and tolerance.

I will validate my relationship. I will not give you the power to do so.

The minute that you insist that I validate your relationship, that is exactly the power you give me. If my validation is not important to you, you would not be seeking -- legislatively or judicially -- to use the power of law to force me to validate it against my conscience.

Is it a deep relationship? I'm sure it is. Is it mutually fulfilling and supportive? I assume so. Is is a marriage? Not to millions of people, and calling us bigots is not likely to persuade us.

Will calling it a marriage make it so? Well, as Abe Lincoln supposedly asked and answered, how many legs does a dog have if you call a tail a leg? Four -- because calling it a leg doesn't make it a leg.

You will never appreciate what discrimination feels like until you encounter it yourself. And I really hope you do (not out of any personal hatred), but so that you could hopefully open up your mind a little more.

Of those who have experienced discrimination first hand, some support the demand to redefine marriage, others do not, and some of the latter group have called the comparison offensive -- including an African American official at University of Toledo, who was fired when she offended the forces of tolerance by pointing out some of the differences between what Black people have faced in the US and what same sex couples face.

Love and tolerance is a 2 way street-perhaps you didn't know that. You do not have to "tolerate" me any more than I have to "tolerate" you. I do not love you and I am not responsible for how your life manifests in this world-you are.

Perhaps you missed the point that I hammered home several times. I am not interested in calling it a marriage. Marriage is a failed institution that I do not need to be a part of. I am trying to explain that to those who feel cast out by Prop 8. I see it as an opportunity to abandon "marriage" as it exists in your small world and create something better. The state and I have a contract, it is a business relationship that does not extend to the bedroom. AB 205 gave me all the rights you have, barring me from the marriage moniker, has no meaning to me. I did not take advantage of the "opportunity" to marry when I had the chance and I won't if Prop 8 is repealed.

2 out of 3 couples divorce in California. Wow, you really have something to be proud of.

1) The ban is not retroactive. This was added to the due process section of the CA State Constitution. The wording leaves the question of marriages performed in other states open, and it leaves the question of grandfathering in the existing marriages open.

2) It does NOT mean that civil unions are affected in any way. The initiative does not address this at all as written in any way whatsoever. Nor does it prevent the state from recognizing same-sex unions with all state benefits which are available for married couples.

3) It doesn't require the state to recognize marriages at all.....

The California Constitution and the Voters Guide are available online. People should check them out.

I made a mistake and looked at obsolete wording - wording that showed quite clearly this wasn't about "protecting marriage", it was about persecuting Gays and denying Human Rights. Which, just to make what I thought should have been obvious completely clear, is a Bad Thing (tm).

The new wording is a concession, allowing domestic partnerships, but still denying a basic human right, one the US has signed on to in the ICCR as clarified by the Yogjakarta declaration - then left it up to the various states as to whether to implement them or not.

That the United States understands that this
Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant.

The CA Attorney General has stated that the ban is not retroactive in his opinion. For one to sue the state and have standing, I would think the state would have to take an opinion which would cause them harm. Since the courts are barred from deciding matters beyond the arguments put forth, this would seem to restrict standing.

In my lay opinion (IANAL), I would think that in order to have standing, one would probably have to have a marriage license issued today or later by a California agency (for example, in San Francisco) and then sue to show that it is valid. Or the state could sue San Francisco to get them to stop providing the marriage licenses, or the like.

IMO, the CA Attorney General has taken a road which seems to reduce the number of people who actually have standing. Just because you are a gay, married couple in CA might not mean you would have standing *unless* the state stopped recognizing you as such.

A situation I haven't seen addressed (granting that I only skimmed the 150+ comments on this thread (and noting that IANAL)) is the following: I live in the Seattle area. I have some lesbian friends who went down to CA (on a visit) to have a nice legal wedding. They have returned to Seattle, as a happily married couple. If Prop 8 is held to retroactively nullify same-sex marriages already granted, what happens to my friends? "Anyone? Anyone? Bueller? Bueller?"

I am neither a lawyer not did I spend last night at a Holiday Inn Express ...

But as a simple matter of grammar, it seems to me that the fact that the amendment is worded in the present tense -- "Only marriage between a man and a woman is valid or recognized in California" -- means that it does invalidate same-sex marriages contracted in the past several months. For a thing to have legal quiddity, it has to have validity at the time of assertion. The benefits and obligations of marriage have to be asserted, which is a particular act that takes place at a definable point in time, to be legally relevant.

To make that very vague and airy graf somewhat concrete, here's what I'm getting at. I married Jane in 2005. If I file my state taxes for 2005 and claim to be married to Eve, the state says my marriage IS valid. It does so in 2006, 2007, etc. But if I were for whatever reason were to refile my 2004 taxes in 2006, my marriage would not be valid (admittedly because it hadn't happened, but still ...). And if Eve and I were to divorce in 2007, my 2008 taxes couldn't claim to be married because the marriage is no longer valid (admittedly for reasons not analogous to Prop 8.) But still ... the point is that marriage is a status whose validity and invalidity can change over time, and this affects whether I can claim to be married for the purpose of discrete acts of asserting that status that occur within time.

And this can be analogized to any California SSM case. If I were to have married Steve in 2008, our marriage would probably be valid (or at least there's no reason to think it invalid) with respect to my taxes for 2008 (when the marriage was valid under the ScoCal ruling), but not 2007 (when the marriage was invalid because impossible under the regnant common law) or 2009 (when the marriage became invalid under Prop 8).

Does this count as retroactivity? I don't think so, precisely because of this very status-act distinction. My marriage to Steve isn't an act that the Prop 8 punishes me for, per se -- i.e., having contracted a gay marriage is not a crime. THAT would be retroactive and thus unconstitutional (btw ... this is what "banning gay marriage" ACTUALLY would refer to; not what Prop 8 or any of the other 30-odd amendments did). Steve and I are still capable of heading to the Metropolitan Church, exchanging rings, cutting a cake, having a hot wedding night, etc. It's just that the state doesn't recognize our marriage as one for its purposes should either of us choose to claim "married" status in our dealings with the state on matters such as taxes, inheritance, medical issues, etc.

In other words, if the amendment had been worded something like "California may only perform marriages between one man and one woman" ... THEN you have a sticky issue because that action-tied wording ("perform") goes to "what the state does" but says nothing about the matter of "what the state did" and relatedly "how it is bound by what it did." Using the present tense and the language of status ("valid or recognized") makes the amendment eternal.

To make that very vague and airy graf somewhat concrete, here's what I'm getting at. I married Jane in 2005. If I file my state taxes for 2005 and claim to be married to Eve, the state says my marriage IS valid. It does so in 2006, 2007, etc.

I initially wrote "Jane" throughout that paragraph, but then decided to have some fun with the Eve-Steve usage and I didn't catch all the "Jane" references. I should obviously have said "I married Eve in 2005."

I was not (intentionally) making a point about polygamy. Though I do think if I married Jane, the state refusing to recognize my marriage to Eve would be just as much an injustice as its refusal to recognize my marriage to Steve.

Even apart from what I wrote about your friends' marriage now having been nullified in California, the federal DOMA clearly means both that they are not married under federal law and that California's recognition imposed no burden on Washington to do the same at any time ever, regardless of the retroactivity issue.

1.) "Yet for more than 200 years, no one seemed to think that the bill of rights includes the right to insist that everyone use the word marriage to include a domestic arrangement between two people of the same sex."

That's because for more than 200 years, nobody had a friggin' clue about sexual minorities. Same sex is not the same as gay. Straight men in prison have sex with each other, but that doesn't mean they are gay. (and if you told any of them that they are gay, you would have your teeth handed to you).

2.) "Today they can still solemnize a union with someone of the same sex, enjoy some or all of the legal benefits of marriage, but can no longer use the law to force people to pretend that the union of two people of the same sex is in fact a marriage."

That's right, because it is easier to force gay people who love each other and want to make a lifelong commitment together into inferior domestic partnerships and not to marry because the majority are disgusted that they have icky sex together.

3.) "Gay marriage is not a right."

The last time I read any state or federal constititution, neither is divorce.

4.) "Because of procreation. Marriage has a very important part - procreation. Equalizing homo and hetero couples you essentiallty abolish procreation."

Then there should be a fertility test for hetero, as well as homo marriage to be legal. If no kids are produced within X number of years, then the state should invalidate the marriage. Whether they love each other, want to be united for life, and have legal protections for the relationship is irrelevant under this logic.

5.) "Gay marriage has not existed in recorded society, at least not until very recently, and the long term effects are yet to be known."

Be scared. Be very, very, scared.

6.) "So, if I understand the forces of tolerance correctly, sexual desire is an immutable traits [sic] like race, anyone who has qualms about redefining marriage or who believes that any such change should be decided by the legislature and not the courts, or who believes there is a moral component to homosexual behavior (as opposed to homosexual orientation) is a religious nutjob akin to a racial bigot, wants all people with homosexual desires to simply disappear, and would have opposed the founding of a republic."

All that, eh? Gay marriage has been approved twice by the legislature, but vetoed twice by the governator. The governator said: "let the courts or the people decide." The CA Supreme Court decided. That wasn't good enough for "the people." So the people voted... not against gay marriage, but against gay marriage "being taught to children." This is the same red herring against gay rights that has been a winner with similar ballot initiatives for over 30 years. So what is wrong with the CA Supreme Court invalidating Prop 8 as a constitutional revision, and sending it to the legislature for a 2/3 majority approval before having the electorate approve? Could it be because the gay marriage foes might lose?

7.) "Okay, thank you for setting me straight on that."

Does that mean you were formerly gay?

8.) "The country as a whole is more conservative than California. It's doubtful that the majority of U.S. voters would agree that defining marriage, as in Prop 8, is all that analogous with racial discrimination."

It isn't analogous with racial discrimination. No African-American family that I know of ever disowned their child when they found out that he or she is black. Nor is it analogous with freedom of religion, or speech. These are constitutionally protected lifestyle choices.

9.) "I was always offended by the comparison of the black civil rights movement and the gay "civil rights" movement. The gay movement just seemed a way for some white people to pretend they're victims of discrimination, just like those long-suffering blacks."

Um... not all gay people are white. Sorry. But, apart from this, yeah, you are right, the gay "civil rights" movement is bogus. Let's admit it. Gay people lurk in the shadows outside straight bars armed with baseball bats and lead pipes to bash in the heads of patrons. Gay people compose ballot initiatives to take away the rights of straight people. Gay people condemn heterosexuals because the bible says divorce and adultery are sins. Gay people lobby to invalidate the marriages of straight people who are infertile, or who don't want to have kids. Yep, you have gay people pegged.

10.) "Elderly infertile and childless couples nevertheless have qualifications for marriage but gay couple [sic] don't. It is like a lawyer who is not practicing law. Why don't we revoke law school diplomas from any lawyer who work as a computer programmer. Or for any doctor who is politician."

See #4.) above. Fertility tests are not required for marriage. this is a spurious red herring.

11.) "Ritght [sic] to procreate and concive [sic] is a fundamental part of the marriage, an [sic] no one have a right to remove that part, since it contradicts 9th amendement [sic]."

*Sigh.* See #4.) and #10.) above.

12.) "We all know that marriage gives a [sic] unconditional right to concieve, but it looks like some people want to revoke that rights [sic] from heterosexual couples."

Yep, that's right- homos are out to take reproductive rights away from heteros. That's why Prop 8 passed: to insure that homos can't take rights away from heteros, heteros preemptively took rights away from homos. That's because homos are inferior, due to the icky sex they have that the majority of heteros don't approve of.

13.) "Because of right to concieve is essential part of marriage, state prohibit a marriage between close relatives."

If right to concieve is essential part of marriage, state prohibit a marriage between infertile couples. See #4.), #10.), and #11.), above.

14.) "No gay and lesbian no judge have a right heterosexual marriaed [sic] couple essential right to procreate."

Was this posting by Borat? Here's my response: No hetero no judge have a right homo marriaed [sic] couple essential right to love.

15.) "I have always believed that a prime motivation for gay marriage is the coveting of financial benefits conferred on spouses. But why should shareholders, taxpayers and small business owners be required to provide medical, 401-K and other benefits to yet another group that provides zero benefit for the business? There is way too much coercive wealth transfer [AKA: theft] going on already."

Yep, that's right: gay couples don't love and care for each other, they are greedy hedonists who don't deserve equal rights because they have icky sex together that the majority doesn't like. So it doesn't matter that gay and lesbian taxpaying folk pay for hetero benefits that they are denied.

16.) WHETHER YOU THINK IT IS CONSTITUTIONAL OR NOT, THE ISSUE IS THAT THE MAJORITY OF THE PEOPLE DO NOT, I REPEAT, DO NOT WANT GAY MARRIAGE TO HAPPEN! PERIOD. WE SIMPLY DO NOT LIKE IT, NOR ACCEPT IT. HAS NOTHING TO DO WITH POLITICS.

OF COURSE IT DOESN'T. GAY PEOPLE DON'T HAVE ANY RIGHTS BECAUSE THE MAJORITY DON'T LIKE THE ICKY SEX THEY HAVE, AND THAT IS ALL THAT MATTERS. THEY ARE SECOND-CLASS SUBHUMANS WHO SHOULD BE KEPT MISERABLE BECAUSE WE SAY SO, AND BECAUSE WE CAN GET AWAY WITH IT.

Anyone want to defend that Maria is not a bigot? And that many of the people who voted for Prop 8 are much closer to Maria than some of the posters here intelligently defending (wrongly in my opinion) Prop 8? This is the basis of Prop 8, bigotry. The fact that some may have come to that conclusion for a different reason doesn't minimize that bigotry that got this passed.

Might also add, just to make Maria even sicker, that the boys with boys and girls with girls will happen with or without Prop 8. And, the people in those "school bathroom" are unlikely to be worrying about marriage at the time anyway. What makes you sick happens in this country, A LOT, and will continue to do so, no matter the results of Tuesday's election.

I also took the time to read every post in this thread and have yet to see a good answer to why non-procreating heterosexual couples are allowed to marry. If, in fact, the purpose of heterosexual-only marriage is to encourage procreation, then why are those who are UNABLE to procreate (not those who chose not to) allowed to marry? There is absolutely no rational relationship between allowing them to marry and the claimed purpose of marriage.

And, if not procreation, but instead stable homes for children, is the purpose of marriage, then why aren't gay couples who adopt/have children from previous hetero relationships/use a surrogate allowed to marry, after they have the children? If it's because you don't believe they are known to be "stable," will more research clear that up? If there is legitimate social science findings that say a married, gay couple provide stable homes for children, then should they (and only they) get to marry? They would be furthering the purpose of marriage, right? Should we divorce couples who have shown that they are unable to provide a stable home for their children? Should we divorce couples who are on government assistance? We want stable homes to keep kids off of the government's dole, right? So bad marriages should be legally ended as not furthering the purpose of the institution.

And, to Honey - I'm glad that you feel the way that you do. I hope that you always feel that way. But I also hope that you realize that not everyone feels that same way. Maybe they should, but that's hardly a fair standard to hold them to. For some, the legal recognition that their relationship is equal to my marriage to my wife, is fundamentally important to them. While I wish everyone felt the way you did and was so secure in themselves, I recognize that many don't and that denying them marriage is unfair and, I think, inhumane. I also think the idea that separate is always inherently unequal, when applied to groups, is a fairly powerful idea.

For those that support Prop 8 and wish to ban gay marriage, I honestly believe you are entitled to your opinion. I won't call you bigots, but I do someday hope you realize that your opinion has more effect than just being your opinion. There are human beings whose lives are irreparably harmed by things like Prop 8. Their worth as human beings is called into question in their own minds (for nothing other than responding to a natural calling that they could not more deny than any of you could deny the love you feel for your partner). I understand your arguments, but I can't support them, and I can only hope that you are able to develop a level of empathy that makes you realize the damage that your arguments do.

Finally, I'm happily married to a wonderful woman. Every day I wake up and am thankful that I met her and that she is an integral part of my life. I can't imagine how allowing other people to feel the same thing that I do, and government recognizing that commitment and love, could be a bad thing. The irony is that I'm fairly sure that I have a much greater respect for marriage than those opposing gay marriage do, because I think marriage is wonderful and should be spread as far and wide as possible, not just kept for my own use. It's a broken institution that could only be helped by having more legitimate, happy, strong marriages - by all people, no matter what their preference.

I also took the time to read every post in this thread and have yet to see a good answer to why non-procreating heterosexual couples are allowed to marry. If, in fact, the purpose of heterosexual-only marriage is to encourage procreation, then why are those who are UNABLE to procreate (not those who chose not to) allowed to marry? There is absolutely no rational relationship between allowing them to marry and the claimed purpose of marriage.

Several reasons:

(1) For an institution to be socially valuable, it needn't necessarily be the case that every instance of it serve that end. The structure is what counts, in other words, not every specific marriage.

(2) Marriage, for people of all ages and whether they can themselves specifically have children or not, establishes that monogamy and fidelity are the expected social norm involving sex. Now, in principle, gays are capable of these things too, but the primary social value that monogamy and fidelity serve are related to children. Admittedly this is so in a far-less-direct relationship than the biological facts of life and the production per se of children (though that excludes gay sex categorically and absolutely), but it is part of the reason.

(3) Simple categorical ease. There is no way to determine whether a particular male-female union is capable of producing children, at least not without Big Brother testing that we all would agree violates a person's privacy. We know a priori that every same-sex union is incapable of generating life.

I agree that some folks need some (for lack of a better word) traditional validation. I do appreciate the "separate is not equal" comment. Though, I do believe there might be a gray area...

However, I cannot allow my gay friends to buy into the idea that they cannot have the same rights as married couples...they can (again, in CA). Knowing that they have this power might give them some breathing room to approach this issue strategically. We will prevail, there is no doubt. In what form, I do not know.

One must protect ones self, straight or gay, from impositions that will materially affect their pursuit of happiness.

(1) For an institution to be socially valuable, it needn't necessarily be the case that every instance of it serve that end. The structure is what counts, in other words, not every specific marriage.

Then the structure would remain if gays were allowed to marry, wouldn't it? If not every single marriage needs to satisfy the purpose then gay marriages would seem to fit. Maybe what I didn't ask clearly enough is why would allowing gay marriage in some way sabotage or defeat the purpose? Given the number of gay marriages that are likely to be entered into (almost certainly no larger, if not smaller than the number of childless marriages, just as a proportion of the population), why is a gay marriage different than a non-procreative straight marriage?

(2) Marriage, for people of all ages and whether they can themselves specifically have children or not, establishes that monogamy and fidelity are the expected social norm involving sex. Now, in principle, gays are capable of these things too, but the primary social value that monogamy and fidelity serve are related to children. Admittedly this is so in a far-less-direct relationship than the biological facts of life and the production per se of children (though that excludes gay sex categorically and absolutely), but it is part of the reason.

First, I should probably object to the "in principle" caveat related to gay monogamy. There is nothing inherent in being gay that prevents monogamy. If anything, preventing gay marriage actually defeats the purpose. If we wanted to encourage monogamy amongst the gay community, then presumably marriage would serve that purpose - at least as much as it's been able to for the straight world. Now, if there isn't something inherent in marriage that encourages monogamy then this reason fails on its face, right? Further, from a public health perspective, monogamy theoretically should be the goal for all people, not just gay or straight, which again, so the argument goes, would be a reason to support gay marriage.

It's also hard to see why gay marriage that encouraged monogamy wouldn't contribute to the general "ethic" of monogamy that would be healthy for all relationships. Saying that monogamy is expected in all sexual relationships seems to be a far stronger statement of the societal "norm" than saying monogamy is only expected for straight people.

Further, to the extent that this is a legitimate justification, don't you have to ban the rearing of children by gay parents, since they're not married and presumably not expected to be monogamous? Or, in the alternative, at least let those gay couples who are raising children get married - indicating that child rearing by everyone requires acquiescence to this "norm"? The justification appears to be pretext unless we're going to follow it through to its conclusion.

And, if "gay sex" not leading to children is the problem, what about couples who adopt or use fertilization or surrogates? The sex involved may not lead to children (either their birth or their rearing) but the relationship may in fact lead to a stable home for the children. Far more stable than forcing gay people, if they want to get married or have kids, to go against their nature and enter straight marriages (as some earlier comments have suggested means that there is no discrimination in banning gay marriage).

Finally, if this is a justification, doesn't that mean that marriage has failed already? Given divorce rates and rates of infidelity, marriage appears to fail at this goal at least as much as it succeeds. I'm not sure why gay marriage should contribute to this problem more than we straights have already done.

(3) Simple categorical ease. There is no way to determine whether a particular male-female union is capable of producing children, at least not without Big Brother testing that we all would agree violates a person's privacy. We know a priori that every same-sex union is incapable of generating life.

We know that gay sex is incapable of generating life, but we don't know whether a gay relationship will lead to a child or whether a gay marriage provides a stable home for children who were produced by straight sex, but who now need a home. Again, if those situations exist, then doesn't the justification for marriage mean that these people should be included?

And some couples we can say with some specificity can't reproduce. People who have surgically prevented it, for example. Or post-menopausal women and the elderly. It would be pretty easy to exclude some of those couples.

And, most importantly, in order to deny people something as important as the right to marry, shouldn't we have something more than categorical ease as a justification? That seems like a pretty flimsy basis to argue for banning same-sex marriage.

As a matter of fact, it's not really a justification by itself. It is only relevant if we assume that procreation is itself a justification. If the procreation issue isn't satisfactory, then this third reason becomes moot. We need a basis for drawing the distinction before this "efficiency" can support anything.

Additionally, I still don't understand why allowing gay marriage would at all affect procreation among straight married couples. The institution will still have the same effect on straight couples whether gays get to marry or not.

All that being said, I appreciate the answer (in seriousness). I think it's wrong, but I'm glad to see that the issue isn't being ignored.

Just to clarify, I agree wholeheartedly with what you're saying and recognize the gray area that you observe. But, while I agree with what you say, I still see it as an ideal and recognize that for many people the ideal just isn't realizable, at least not yet. Either way, we'll continue to fight the fight.

"(1) For an institution to be socially valuable, it needn't necessarily be the case that every instance of it serve that end. The structure is what counts, in other words, not every specific marriage."
Then the structure would remain if gays were allowed to marry, wouldn't it?

No, because when I say "the structure of marriage," I refer to the male-female union, which is oriented to the reproduction that male-female sex permits. The (obvious) fact that certain male-female unions do not in fact produce children and cannot do so does not speak to changing the social understanding of the union's structure. But for "same-sex marriage" even to be a coherent concept on its face that we can even discuss as whether to allow or not allow (tip of hand: I don't think it is), one's understanding of "the structure of marriage" must always already be a different one, and one not oriented to reproduction.

First, I should probably object to the "in principle" caveat related to gay monogamy. There is nothing inherent in being gay that prevents monogamy.

I never said there was, though the structure of the male-male union is, 'ow you say, a very strong headwind against it. And this is borne out by its being statistically very very rare and definitely not the expected norm among out gay men living the lifestyle openly in the typical urban gay neighborhoods, i.e., where it's meaningful to talk about a "gay community" rather than a few gay people.

But more to the point, what I was saying that gay monogamy isn't socially valuable, however good it may or may not be for the persons themselves, because it's by-definition unrelated to children because of the biological facts of life.

If anything, preventing gay marriage actually defeats the purpose. If we wanted to encourage monogamy amongst the gay community, then presumably marriage would serve that purpose - at least as much as it's been able to for the straight world.

(Joke: What does a lesbian bring on a second date? A U-Haul. What does a gay man bring on a second date? What's a second date?)

Seriously ... it isn't marriage per se, but marriage to the opposite sex (or more generally "the opposite sex") that encourages monogamy. The reason bathhouses and backrooms exist (but straight and lesbian equivalents basically don't) is not because men can't marry me,n but because the gay world is men without women, and they act as men are wont, liberated from women.

Now, if there isn't something inherent in marriage that encourages monogamy then this reason fails on its face, right?

There isn't anything "inherent" in the sense that it is obviously *possible* for married people to cheat (or so I've heard) and even to swing or have "open" marriages. But are those things the social norms?

What I'm getting at, and I'm not sure you're seeing I'm getting at, is that marriage establishes and institutionalizes an ideal social norm in the realm of sex, for the purposes of first-producing and second-rearing the next generation. Those norms are fidelity and monogamy between a man and a woman, which produces children, which ties men to their biological children in a way that biology itself does not, and which couples love and sex to encourage family stability.

Given that understanding, most of what you argue is simply irrelevant. Ideal social norms are not refuted by pointing to failure in particular cases (divorces, abandonment) or an imperfect fit with every detail of particular law (infertility). Ideal social norms are also not fundamentally about tax benefits, privileges, inheritance law and all of that (gay marriage proponents betray that for them it is all about particular-interest by concentrating much of their rhetoric on these things).

Further, to the extent that this is a legitimate justification, don't you have to ban the rearing of children by gay parents, since they're not married and presumably not expected to be monogamous?

Yes.

I have no problem with at a minimum, discouraging that and certainly don't think anybody has a general individual "right" to adopt, much less to adopt a given child.

Or, in the alternative, at least let those gay couples who are raising children get married

How did those children in such cases come about? Certainly not from the gay sex acts themselves, meaning the "family" in question is not a biological, organic one, prior to society.

But to anticipate your next question, yes, I do think that if a married person with children "discovers" that he's "really" gay, dumps the spouse and starts living the lifestyle (we'll call this the McGreevey case), that should be grounds to prefer the other person in matters of custody, other things being equal. Now, as with every other social norm and rule, there will be some cases when the other things are not equal (when Mrs. McGreevey is a crack whore, say). That is a reason for judges to make judgments in particular cases. And I've no doubt that it some cases that will mean Gov. McGreevey will get the kids. So be it. Civilized human beings have lived by making exceptional arrangements in particular cases. We don't have to redefine the essential structure of marriage to make them (how DID we do it prior to 2003 and outside Massachusetts?)

- indicating that child rearing by everyone requires acquiescence to this "norm"?

The fact you put quotes around the word "norm" really says far more than your explicit arguments do.

And, if "gay sex" not leading to children is the problem, what about couples who adopt or use fertilization or surrogates?

Adoption is an accommodation to tragic cases. That it occurs and is in many cases good does not make it a "good-in-itself": if it were we'd go with The City in Speech in Plato's "Republic" and raise all children communally, i.e., universal adoption.

And I think surrogate parenthood (and open adoption) are travesties that should also be banned -- the logical consequence of the bourgeois consumerist assumption that parenthood is an individual's "right" (which makes a child a commodity) and not a calling that results from love.

Far more stable than forcing gay people, if they want to get married or have kids, to go against their nature and enter straight marriages (as some earlier comments have suggested means that there is no discrimination in banning gay marriage).

I deny virtually every word of that paragraph:

-- Nobody, today anyway, seriously suggests persons with same-sex attractions should be "forced" to marry persons of the opposite sex;
-- Homosexuality is not any person's "nature," but rather learned behavior that, like anything else, can become habitual. And if one chooses to see it as his identity, it can, in fact, become his identity;
-- Nobody has any right to have children. At all. Calling children a right turns persons into means of self-gratification and/or self-assertion.

Finally, if this is a justification, doesn't that mean that marriage has failed already? Given divorce rates and rates of infidelity, marriage appears to fail at this goal at least as much as it succeeds. I'm not sure why gay marriage should contribute to this problem more than we straights have already done.

Hey ... if you want me to decry the sexual behavior of the average straight person today, I'm more than happy. After all, Stonewall came after the Summer of Love, not before. Contraception, fornication, no-fault divorce, shacking-up, abortion, serial monogamy -- absolutely, breeders have effed it up massively since the 60s.

In fact, this is one bit of sympathy I have for gay-marriage proponents. All they're doing is saying "hey, what about us. Why can't we get in on the fun?" There is no way to get around the fact that gay marriage is part and parcel of a set of assumptions about sex (that it's basically an enjoyable form of recreation, a consumer good) to which many, if not most, breeders already subscribe. Calls for gay marriage are more a symptom of the decline of marriage.

But if you're in a hole (post-60s sexual morals) and want to get out, the first thing you do is stop digging. Stop acting as if the assumptions of the hole you've dug need to be taken to their logical end simply out of a misguided sense of fairness and/or an inability to see why you shouldn't move this particular spadeful of dirt because you've decided you like the hole (have I overextended the metaphor too far yet).

we don't know whether a gay relationship will lead to a child

Actually, we can be certain that in and by itself, it will not. All children come from somebody's sex.

And some couples we can say with some specificity can't reproduce. People who have surgically prevented it, for example. Or post-menopausal women and the elderly. It would be pretty easy to exclude some of those couples.

I refer the gentleman to the point above that none of these cases redefine the structural public image of marriage and are not a-priori infertile (unless you want to have the state require fertility or menopause tests of women).

And, most importantly, in order to deny people something as important as the right to marry, shouldn't we have something more than categorical ease as a justification?

You're presupposing that the structure of marriage is a denial of an important right. On a certain understanding, I suppose It is in a way. But in that way, every structure of marriage in any society ever (and I do mean "every" "any" and "ever") denies SOMEONE a right to marry according to an understanding of marriage other than that social norm. Your argument is only coherent if it is a fact that "marriage" means "whatever any person wants it to mean" and that society has no role in defining it.

And this is the real basis for saying that gay marriage will lead to polygamy, incest, child-marriage and bestiality. It's not that gay people somehow empirically want to interfere with dogs or kids or have a harem (that's stupid). Simply that if we accept this understanding of marriage as an individual right and say that structural social norms discriminate against those who want to marry outside them (and you are doing both) -- then the society has no basis to say "no" to those others who do want to marry 13-year-olds, their cousin, multiple wives, etc.

FWIW I'm in a legal same-sex marriage in a country where same-sex marriage is illegal. There are rare medical conditions (the most common being 5alpha-reductase-2 deficiency (5alpha-RD-2) and 17beta-hydroxysteroid dehydrogenase-3 deficiency (17beta-HSD-3)) which cause sex reversal after birth. So one can be legally and apparently of one sex at marriage, then change biologically (and in some jurisdictions, legally too) to the other. Treatment of Transsexuality has the same effect, but requires medical intervention rather than being a natural change.

The thing is... that in some jurisdictions - for example, Australia - the concept of an indeterminate gender on the birth certificate is followed. This is catered for by the ICAO in the passport "sex" field, which can be M, F, or X.

Those like myself with dual nationality and a different legal sex depending on which of the two nations I'm in are in an interesting position should we emigrate to California.

I'm actually tempted just to show how silly and against biological reality this law is.

Seems to me that what is missing is any thoroughgoing analysis from a libertarian point of view. The crux of the issue is what is the role of government in the marriage business. Nothing the government does or does not do with respect to marriage challenges anyones beliefs or religious practices. But demanding that a religious based definition of marriage be adopted by the government in connection with a whole bundle of rights and priviliges. . . All the rest is ideology and has nothing to to with government. And in a libertarian democracy anyone arguing for a limitation on rights and priviliges is a hypocrite.

Homosexuality is not any person's "nature," but rather learned behavior that, like anything else, can become habitual. And if one chooses to see it as his identity, it can, in fact, become his identity;

Except you have no evidence to back up this point. There are MANY scientific studies that indicate sexuality is established at birth (probably through a combination of genetic factors and hormone levels in utero), but none that I know of that indicate it is either a choice or a learned behavior.

As several people on this board have stated, sexuality is not the same as race. A black man can't wake up one day and decide to pass as white. I believe a better analogy is handedness. A left-handed person can wake up one day and decide that he will use his right hand to write or throw a ball or brush his teeth. The efforts will usually be clumsy and ineffective, but it can be done.

Like homosexuality, science doesn't know specifically what causes left-handedness, but current thinking is that it's partly genetic, partly environment in utero. It affects a relatively small proportion of the population, but it compels them to interact with the world in exactly the opposite way that the vast majority of people do.

Like homosexuality, left-handers were once a persecuted minority. They were sometimes put to death, since the condition was seen as "of the devil" or a sign of possession. "Sinister" and "gauche" have negative meanings, and both have their roots in references to "left." Interesting that "that's so gay" doesn't necessarily refer to sexuality anymore -- it's more of a blanket statement about the uncoolness of something.

Yes, gay people can -- through tremendous force of will -- tamp down their sexuality and keep it hidden. Left-handed people (like my ex-father-in-law) were sometimes forced by teachers to use their right hands for normal tasks because left-handedness was seen as an aberration of some sort.

The question is, why should either homosexuality or left-handedness be suppressed?

Prop 8 enshrines superficiality into the state constitution. Pretty much now it's deemed OK for a woman to be denied the right to marry because she has the physical appearance of a woman. It's all a damn superficial issue. Just because a man looks like a man doesn't mean he's going to fall into the stereotypical gender roles!

"We know that gay sex is incapable of generating life, but we don't know whether a gay relationship will lead to a child or whether a gay marriage provides a stable home for children who were produced by straight sex, but who now need a home."

CourageMan's reply:

"we don't know whether a gay relationship will lead to a child

Actually, we can be certain that in and by itself, it will not. All children come from somebody's sex."

Myr: Interesting argument. I wonder how we can make people's heads spin with transgendered people. So as 1/2 of a lesbian couple, let's say I decide I truly am a man trapped in a woman's body (not making light of when this happens, just making an argument for discussion) and decide to go through gender-reassignment surgery.

I now have all the working functionality of a man save the ability to impregnate my wife (which doesn't make me unique among men, many are infertile) but have chromosomes that are XX. Can I now marry her? Because I look PHYSICALLY like a man, act like a man, and present myself as a man? Are you going to force me to endure a blood test to ensure my chromomal make-up prior to issuing me a marriage license?

African-Americans have the highest rates of out-of-wedlock births and families without fathers. This is a culture of hyper-masculinity, where men prove themselves by bedding women. It is homophobic: men who don't enpregnate women are less deserving of respect. That's why African-Americans voted for 8, which was funded by the Church that stuck with racism the longest.

Kim, if Transsexual people make your head spin, you'd freak at some Intersex conditions.

Like my own. I looked male for most of my life, and in 1985 was diagnosed as a mildly Intersexed male. In 2005, when the symptoms of my condition manifested, I had many thousands of dollars of tests (after insurance) which diagnosed me as a very severely intersexed female.

Only 1%, perhaps even less, of natural "sex changes" are from M to F. I'd always thought I was merely transsexual, you know, the "woman trapped in a man's body" cliche. And I'd learnt to live with it, even though it felt horribly uncomfortable, perverse and wrong. The relief when my body finally got a partial natural female puberty was immense.

There's not quite a thousand people whose apparent sex changed from natural causes after birth in California. Almost a hundred thousand who would make your head spin or even implode for various reasons. Rather more than that who are Intersexed but don't show it (such as Miss Teen USA 1991, who had Complete Androgen Insensitivity Syndrome, so was female despite 46xy chromosomes, usually found only in males). Some of the latter don't even know they're unusual unless they visit a fertility clinic because they have difficulty getting pregnant.

Oh by the way, surgical alteration doesn't change your gender. That's between the ears. It's just that some people's gender doesn't match what's between their legs, they're neurologically intersexed, and this is a completely separate issue from sexual orientation. Contrary to ignorant belief, gay men are men, not wannabe-women, and lesbians are gay women, not wannabe-men.

What? No rights at all? What have we done to deserve being complete strangers to civil rights?

Oh, that's right. You're worked up over that icky sex stuff. I'll never understand the heterosexual animus toward gay sex. It's a sub-set of straight sex (we don't do the penis-vagina thing).

The stereotype would be men proclaiming that gay men are disgusting because of their sexual practices and then trying to get their girlfriends to engage in those same (presumably not so disgusting now) practices.

In the words from Casablanca, "a kiss is just a kiss." It's no more disgusting for Rick to kiss Sam than it is for Sam to kiss Ilsa (though neither of those kisses would have made it past through the Production Code).

Oh, but you concede (how generous) that we have rights as human beings. Then we get exactly the same rights. That includes the right to marry the people we love.

But don't tell us to "go to hell." It really doesn't become you. It just betrays your bigotry toward gay people.

And all that for a tautology. I was hoping for something more. Let me summarize:

You make the basic claim:

The basic structure of marriage is a man and a woman,
therefore
marriage must remain a man and a woman.

The question at hand is "must marriage only be a man or a woman?" or even better, "is there a rational explanation as to why marriage must be only a man or a woman?" or "what's the reason for excluding gay people from marrying each other?"

While it's handy to define terms, definitions are constructs, not Platonic absolutes.

This table is made of wood.
therefore
It is impossible to make a glass table.

If we define "table" as "something made of wood," then it works, just not for that glass table over there.

If we define "marriage" as "a heterosexual union," then we're engaging in tautology. And we can sit down at the glass table and ask if it really has to be that way.

In years of reading arguments for and against same-sex marriage (and I've been fascinated by this topic for about fifteen years now), I have never come up with an argument against same-sex marriage that holds water.

2. The claim made that some other aspect (such as procreation) is the vital ingredient in marriage. This is inevitably followed by much hand waving to explain why not all heterosexual marriages fit the pattern. Ultimately, it devolves back to the first category.

You're insulting the wrong person. I wrote the comment about Rick and Sam.

De gustibus non est disputandum. Although you seem to disagree with that.

Let's clean up your prose a little:

You would be disgusted to see Rick kissing Sam. (I already like Casablanca, I'd like it more if Rick kissed Sam. Or Lazlo. "You know, Frenchie, this could be the start of a beautiful friendship." Not that I'm saying anything. Not that there's anything wrong with that.)

You are disgusted by your co-worker with unshaven armpit hair. (I don't tend to closely observe the armpit areas of my co-workers. It would seem intrusive. Nor do I understand the mode of grooming that disdains normal hair on women. Men aren't expected to shave their underarm areas.)

I further doubt that her armpit hair is longer than the hair on your head. Buzz cut?

Finally, oddly enough, resent research has indicated that there might be a biological basis for transgender people. Seriously. I always assumed it was wholly psychological. Guess I was wrong.

I wasn't aware that by temporary halting his sex-change and bearing a child that Thomas Beattie was attempting to "look more like a long wall or embankment built to prevent flooding from the sea."

Can you give me a source on this? Was flooding a problem in his household.

You did say "dike."

Maria, not only are you expressing ignorant bigoted views, but you are revealing that you are sorely in need of a good dictionary.

Zoe,
I hope you don't think I was being disrespectful. My point was simply how the "majority" doesn't see that gender and sex are not the black and white they would like them to be, and trying to define marriage by one or the other doesn't work.

I apologize if I was misunderstood. Transgender and intersex does not make MY head spin. :)

John D -
I think I love you. :) If only everyone could approach these discussions this way.

Maria - YOU think it's disgusting to watch Rick kiss Sam. I think if Rick wants to kiss Sam, that's kind of between Rick and Sam. If they want you to watch, then fine, otherwise, don't look. But just because YOU think it's disgusting doesn't mean it's hurting you or worthy of denying rights over.

I don't think ignorant people should get married. I'm proposing an IQ test for marriage licenses. What? That bothers you? Better study then.

See? Where do we draw the line? Who gets to decide which minorities get to keep their rights and which don't? DON'T use the Bible, or what you THINK is disgusting to define whether or not my family gets LEGAL protection. I'm pretty sure that what some straight people do in the bedroom is disgusting to many. Gay marriage (just like straight marriage) is NOT ABOUT WHAT HAPPENS IN THE BEDROOM.